Latest Accessibility News on Accessify

Following coments on Twitter, one might think that the case of the National Federation of the Blind v. Target lawsuit ended up with a big win for accessibility. On the face of it, this may appear to be true - sure, it’s cost Target $6 million to finally put this case to bed. That’s not an insignificant amount of money by most people’s standards, but by Target’s measures it’s still small change.As Bruce Lawson points out in his post on the topic, Target gives away $3million every week to its local communities through grants and special programs.

Looking at the positive: they’ve agreed to remove the accessibility barriers that were identified by February 2009. That’s something, at least. They could have just done that a couple of years ago, at a significantly smaller cost, mind. If it were my business, I know I’d much rather spend $50,000 and get it right than have the company name dragged through the mud for a couple of years and at a cost of $6m. But hey, hindsight is a wonderful thing, right? And Target is not a one-man business.

The downside (aside from the comparitively small amount of payment in settlement) is the lack of admission on Target’s part that they did anything wrong. If that were truly the case, though, and they really were ‘whiter than white’, how did they end up with the conclusion that they did? Surely the result alone indicates culpability? Bet then, like so many other commenters have said since reading this, "I’m not a lawyer", so perhaps I’ll never truly get the fine details.

What does this mean from here on in? Well, we still don’t really have the perfect test case (or ’scare case’) that we can refer people to: "Don’t do x and the accessiblity boogeyman will come get you, oooooh!" That said, most people that you might be creating web sites for are also not lawyers and won’t get the fine details - they’ll just see that a big corporation had to pay out a large sum of money for not doing basic housekeeping. And perhaps that’s all we need for the time being?

British Standards Institution (BSi), the UK’s national standards body, now in the process of establishing a new technical standards committee to oversee the development of a standard which all organisations will be able to follow in procuring or developing an accessible website.

[...]

[Julie] Howell says BSi would like the standard to be based on PAS78 but she is also keen to widen it to embrace some of the new types of web service that were not around just a couple of years ago when the PAS was drawn up.

Read the full story on the E-Access Blog: Raising the standards.

Summary: Target case now open for class action and every blind person in the U.S. who has tried to access Target.com can become a plaintiff.

Summary of summary: Target, you’re screwed.
[Well, maybe … possibly, but I am not a lawyer, usual disclaimers apply]

Many times in the past when explaining to people why accessibility is important, I’ve rolled out the legal argument – why it’s something that you should do if you want to be on the right side of the law, whether that’s the Americans with Disabilities Act (ADA) in the States or the Disability Discrimination Act (DDA) in UK. But when asked for examples, I’ve always had to pull out the Australian Sydney 2000 Olympics case .. and that’s about it. The legal threat has always felt just that – a threat, not a reality. To that extent, I don’t tend to lead with the legal reason now, instead focusing on the business benefits of getting accessibility right and the moral reasons. But that may be about to change.

Early last year, a California resident brought a legal case against Target.com because of their web site’s inaccessibility. It looked for a while like it might ‘quietly go away’ as has often happened in the past, mainly because Target made some changes and also Amazon announced that it would be working with the National Federation of the Blind (NFB), a move which seemed out of character to many - and the significance of this is that Amazon, often touted as an example of inaccessible page design, is powering Target.com’s e-commerce capabilities. In short, it looked like Amazon might be cozying up with ‘the enemy’ to appear to be doing the right thing. Well, that’s largely irrelevant now, as it doesn’t appear to have helped in the long run.

The Target case has reared its head once more and the U.S. District Court for the Northern District of California has certified the NFB lawsuit against Target as a class action and ruled that websites like Target.com are required, under California state law, to be accessible. This means that any blind user in the states who has tried to access Target.com can join the class action which must, surely, spell a whole heap of trouble for Target. It’s the test case that the accessibility community knew had to happen one day – and indeed were welcoming it – while the business world tried the old emu avoidance method by sticking their head in the ground and hoping they don’t get caught. Or is that ostriches? Matt May wrote the following on the topic in February last year:

But I’ve also seen cases where it’s a legal game of chicken: some companies refuse to comply with a legal mandate that they feel doesn’t clearly apply to them. They’re gambling that the cost of being found guilty of non-compliance is lower than that of conforming to a standard that may not apply to them. This strategy falls apart like a house of cards as soon as one of them is found liable. And it’s a tactic I find particularly odious when they’re consciously acting to keep users with disabilities out.

So this one looks like it’s going to run and run and not, as Target might have hoped, quietly go away. One question to ask at this stage is how this might spill over to other countries – will UK look at this case and take it as a precedent? Like I said, I’m not a lawyer, so if you are please add your thoughts in the comments.

A few days back Roger Johansson contemplated the value of accessibility statements on web pages while, quit coincidentally, Accessify reader Rosie Sherry was having similar thoughts on the topic:

The use of web accessibility statements seems to be linked to the Code of Practice from the DDA . It appears that the fear of being sued over inaccessible websites led to the mass introduction of accessibility statements. This made it appear that people were making an effort to make accessible sites.

Word gets around easily on the web and this resulted in accessibility statements being implemented on many sites (probably around 12 million), usually copied and pasted from on site to another (as no official guidelines existed). The excuse was that they would help users, but time has proven that the actual practice of implementing accessibility statements has not gone according to plan.

You can read her thoughts here in the article Showing Web Accessibility Statements the Door

In the accessibility world, a lot of us bemoan that fact that despite the various different pieces of legislation and the guidelines around web accessibility, there are very few examples of any company or organisation ever really being screwed for not complying. Sure, there was the Sydney Olympics case and there was the … uh. Um, nice weather we’re having, isn’t it? Anyway, the point being that we as an ‘industry’ (if that is the right term) have been saying for years that if you mess up on accessibility you could be sued, but the longer it didn’t happen, the more people thought it was a case of ‘cry wolf’.

I certainly don’t want companies to be unfairly vicitimised or for individuals in these companies to be picked out for criticism just to prove a point, but likewise the legislation is there for a reason. One company has just found that, in the US at least, the legislation may yet have an affect - in California, the Target.com case has entered a new stage. In this case, the plaintiff is ‘all blind Americans’ - it’s a class action with Bruce Sexton, a college student, the NFB (National Federation of the Blind) and NFB California as named plaintiffs - and the case has resurfaced because Target’s request for the case to be thrown out has been rejected.

The NFB’s press release suggests a victory for the plaintiffs, but it’s not a clear victory:

Explaining the ramification of the ruling, Mazen M. Basrawi, Equal Justice Works Fellow at Disability Rights Advocates, noted that: “the court clarified that the law requires that any place of public accommodation is required to ensure that it does not discriminate when it uses the internet as a means to enhance the services it offers at a physical location.”

It doesn’t say “the ADA must include web sites” but rather (paraphrasing here) “it should not exclude outlets other than the physical premises”. This is a bit more woolly than the press release might have you believe.
So, the case is not over yet. Target may not have had it thrown out, but they have not yet lost the battle overall. Regardless, there’s a lesson for any US web site owners who may have uttered statements like “Ah, they’re just full of hot air - no-one’s ever actually been sued for this” in the past. I imagine that the big retailers’ legal departments are, right now, preparing some fairly detailed question sheets for their web teams to find out just how vulnerable they are.