Must Retailer's Web Site Be Accessible to the Disabled?

In Target Corp., the National Federation of the Blind argued that Target discriminated against the visually impaired by failing to make its Web site accessible to such customers. The plaintiffs alleged they were denied equal access to the goods and services available through Target.com, such as the opportunity to purchase items, refill prescriptions, and order photo prints over the Internet, because the Web site was not designed in a way that permitted the effective operation of screen-reading software and other assistive devices used by blind or partially sighted individuals to navigate Web pages.

Title III of the ADA prohibits private entities from discriminating against the disabled in places of public accommodation. Specifically, private entities must provide the disabled with equal access to the goods and services of places of public accommodation. Accordingly, the ADA requires that private entities provide reasonable accommodations to disabled persons, which, in the case of the blind or partially sighted, includes providing auxiliary aids to ensure that they can effectively communicate and take advantage of the goods and services offered. Many states, such as California, have analogous statutes relating to public access for the disabled.

Blind or partially sighted people use screen-reader software to access Web sites on the Internet. Web sites that are designed to be accessible to the blind include alternative text, which is invisible code embedded beneath the graphics of a Web site. The screen-reader software reads the alternative text aloud and describes the content of the Web site to Internet users who cannot see the graphics. Screen-reader software also makes it possible for blind Internet users to navigate a Web site using the keyboard, rather than the mouse, since the mouse pointer is difficult to locate on the computer screen.

In the Target case, Target argued that in the Ninth Circuit, places of public accommodation are deemed to be physical spaces, and, therefore, plaintiffs failed to state a claim because they were not denied physical access to Target stores. Although the court conceded that only physical spaces constitute public accommodations, it applied a nexus test to determine whether the plaintiffs had been denied any of the services of those physical stores, including services that may be offered off-premises, such as through a Web site.

The court stressed that Title III of the ADA applies to all of the services provided by a place of public accommodation ' it is not limited to services provided on the physical premises. Therefore, to state a claim, the plaintiffs did not have to allege that they were denied physical access to a Target store. In fact, the court noted that 'intangible barriers 'restrict a disabled person's ability to enjoy the defendant entity's goods, services, and privileges.”

Target also argued that it did not have to redesign the Target.com Web site to make it accessible, because the information available at Target.com was also available over the telephone and through other means. In general, a public accommodation may ensure accessibility by providing alternative formats or methods to persons with disabilities. A restaurant, for example, is not required to have menus in Braille, as long as waiters are available to explain the menu to blind patrons. The court rejected this argument as premature at the motion to dismiss stage, and noted the argument was available to Target as an affirmative defense in the future.

In rendering its decision, the court observed that many of the goods and benefits offered on Target.com were services of Target stores, and were integrated with goods and services available in Target stores. The court found a sufficient nexus between the challenged service and the public accommodation and, as such, denied Target's motion to dismiss. The court specifically held that the plaintiffs stated a discrimination claim under the ADA as to those aspects of Target's Web site that related to the full use and equal enjoyment of goods and services offered in Target's physical stores.

The court also allowed plaintiffs to proceed under analogous California statutes, the Unrue Civil Rights Act and the Disabled Persons Act. Both statutes provide that a violation of the ADA also constitutes a violation of these statutes. This is noteworthy because while Title III of the ADA does not provide for monetary penalties or compensatory or punitive damages, the California Unrue Civil Rights Act does ' up to three times actual damages or a minimum of $4,000 per claimant, plus attorneys' fees.

An Emerging U.S. Litigation Trend

For public interest and disability advocate groups, the Target decision represents the winning combination such groups have sought to unlock U.S. courthouse doors on the issue of Web site accessibility. Past efforts, at least in the United States, have been less successful.

In a prior U.S. decision, Access Now, Inc. v. Southwest Airlines, 385 F.3d 1324 (11^th Cir. 2004), the plaintiffs sought a declaratory judgment that Southwest Airlines' Web site, Southwest.com, violated Title III of the ADA because screen-reader software could not read many of the Web site's features, such as on-line reservations and Internet pricing specials. Unlike the plaintiffs in Target, however, those in Southwest argued only that Southwest.com was a place of public accommodation. They did not argue that Southwest.com was a service and that there was a nexus between the service and Southwest's physical ticket counters.

The Southwest case was appealed to the Eleventh Circuit, which returned a decision in favor of Southwest. The court never reached the merits and dismissed the appeal solely because of a procedural flaw. Specifically, the plaintiffs raised the nexus argument on appeal when they had not done so at the district court level. Notably, the court expressed some disappointment that it could not reach the merits. Following the decision, according to Access Now's Web site and February 2005 newsletter, Southwest Airlines voluntarily modified and enhanced its Web sites to permit access for the disabled.

Other Rulings

The Ninth and Eleventh Circuits were not the first Courts of Appeals to consider these issues. In Doe v. Mut. Of Omaha Ins. Co., 179 F.3d 557, 559 (7^th Cir. 1999), the Seventh Circuit Court of Appeals stated that the owner of a Web site or other facility, whether in physical or electronic space, cannot exclude disabled people from entering the facility or using it in the same manner as the non-disabled. Similarly, in Carparts Distribution Ctr., Inc. v. Auto. Wholesalers Ass'n of New England, Inc., 37 F.3d 12, 19'20 (1^st Cir. 1994), the First Circuit Court of Appeals held that the phrase 'public accommodations' is not limited to actual physical structures, but may also include 'services which do not require a person to physically enter an actual physical structure.' These decisions indicate that a private entity that has a Web site but no physical store or place of business may be a public accommodation subject to Title III of the ADA.

Although the ADA does not explicitly impose a Web site accessibility requirement, Congress has imposed explicit requirements on government employers and certain private transportation entities under Section 508 of the Rehabilitation Act. Also, the Department of Transportation has promulgated guidelines that require businesses in the transportation industry to make their Web sites more accessible to the disabled.

Whether because a company's Web site is a 'service' or because the Web site itself is a place of public accommodation, it is now much clearer that courts will interpret Title III of the ADA to apply to Web sites or Web site services. In California, and other states that may impose a broader range of remedies than does Title III of the ADA, class litigation challenging the accessibility of Web sites could lead to substantial liability, in addition to embarrassing publicity.

Web Site Accessibility Is a Global Issue

The potential for further development of U.S. law in this area seems apparent when considered in a global context. In general, the United States lags much of Western Europe and Australia in terms of the regulation of access to Web sites for the disabled.

The United Kingdom, for example, has made compliance with Web site accessibility guidelines mandatory for private employers. Since the amended United Kingdom Disability Discrimination Act of 1995 took effect on Oct. 1, 2004, all private employers must take 'reasonable steps to remove barriers or enhance Web site features to permit access by disabled persons.' Also, the Netherlands, Germany, and France have passed legislation requiring public employers to meet a minimal standard of accessibility. Finally, in Australia, a plaintiff successfully sued the city of Sidney for failing to create an accessible Web site for the 2000 Olympics. The plaintiff was awarded $20,000 USD in damages, and the court adopted international Web site accessibility guidelines as the benchmark for determining minimum accessibility standards for Web sites.

The task of determining what ought to be the minimum accessibility standards for Web sites was tackled several years ago by the World Wide Web Consortium ('W3C'). W3C issued international Web Content Accessibility Guidelines (WCGA) as voluntary guidelines for Web site designers to use in designing accessible Web sites. The guidelines, available at http://www.w3.org/WAI/ Resources/#gl, establish three standards of accessibility, 'A,' 'AA,' and 'AAA.' Web sites that comply with standard 'A' meet the minimum requirements for accessibility. Companies that strive to go beyond these minimum standards are encouraged to meet either standard 'AA' or 'AAA.' Examples of ways to achieve accessibility standards include:

• Accommodation of screen reader software by providing descriptions of video and alternative text for every non-text item, including hyperlinks;
• Avoidance of tables, columns, or disordered images so that the Web site reads from top to bottom;
• Where a Web site requires the user to enter information into a box on the page, label the box line by line so that it is clear what information is required in each field;
• No requirement for the use of JavaScript, Micromedia Flash, or other plug-ins that cannot be read by screen-reader software;
• Where a Web site does utilize plug-ins, provision of alternative content in case these features cannot be read by screen reader software;
• Captioning or transcripts of audio for hearing-impaired users; and
• Display of text against a contrasting background.

Various services are available over the Internet to 'test' the accessibility of a particular Web site.

Conclusion

The growing global trend toward requiring private entities to design accessible Web sites means that private entities should consider designing accessible Web sites now, while the risk of litigation is still low. Based upon the popularity of Internet pricing specials, on-line services, and on-line job recruiting, and the likelihood that U.S. law in this area will continue to evolve, companies can expect more lawsuits will be filed asking the courts to extend the coverage of the ADA and analogous state laws to Web sites.

While it may not be cost effective or necessary to design a new Web site from scratch, companies that are scheduled to redesign their current Web sites should aim to investigate, learn about, and comply with accessibility guidelines in conjunction with those plans. Retailers, particularly those with Web sites that support physical store locations, may wish to consider more urgent action.

David S. Baffa, a member of this newsletter's Board of Editors, is a partner with Seyfarth Shaw, Chicago. He represents companies in employment litigation and union avoidance matters. Kathryn S. Clark is a first-year associate with the firm, with prior experience at a management consulting firm.

In September 2006, the United States Court of Appeals for the Ninth Circuit held that a retailer with physical store locations may be sued under the Americans with Disabilities Act ('ADA'), the Unrue Civil Rights Act (Cal. Civ. Code ' 51(b)) and the California Disabled Persons Act (Cal. Civ. Code ' 54.1(a)(1)), if its Web site is not accessible to the blind. Nat'l Fed'n of the Blind v. Target Corp. , 452 F. Supp. 2d 946 (9 th Cir. 2006). Although the ADA does not impose an affirmative duty on companies to make Web sites accessible to the disabled, the Target decision may represent the tip of a looming iceberg. Companies ' particularly retailers with physical store locations ' that maintain a Web site to enhance the 'full and equal enjoyment of goods and services' offered in physical stores should consider revamping those sites to make them accessible not just to the visually impaired, but also potentially to those who are hearing impaired, learning impaired, or who have limited mobility.

As described below, pure on-line retailers, companies that maintain business-to-business or less public-facing Web sites, as well as companies that communicate with employees through an 'intranet,' also should take notice of and monitor this potential litigation trend. For many organizations, an initial challenge is simply determining who should have accountability for monitoring and evaluating these issues, particularly for organizations that lack a formal compliance oversight function. The risks currently in focus for employers may not cleanly fit within the responsibilities of in-house employment counsel or Human Resources, but the ADA and the Unrue Civil Rights Act are statutes that impact the workplace and, as discussed below, the arguments for Web site accessibility raised in the Target case are important to consider with regard to employees and applicants, particularly for companies that rely on electronic communications and internal and external Web sites to communicate with employees and applicants.

The Target Decision

In Target Corp., the National Federation of the Blind argued that Target discriminated against the visually impaired by failing to make its Web site accessible to such customers. The plaintiffs alleged they were denied equal access to the goods and services available through Target.com, such as the opportunity to purchase items, refill prescriptions, and order photo prints over the Internet, because the Web site was not designed in a way that permitted the effective operation of screen-reading software and other assistive devices used by blind or partially sighted individuals to navigate Web pages.

Title III of the ADA prohibits private entities from discriminating against the disabled in places of public accommodation. Specifically, private entities must provide the disabled with equal access to the goods and services of places of public accommodation. Accordingly, the ADA requires that private entities provide reasonable accommodations to disabled persons, which, in the case of the blind or partially sighted, includes providing auxiliary aids to ensure that they can effectively communicate and take advantage of the goods and services offered. Many states, such as California, have analogous statutes relating to public access for the disabled.

Blind or partially sighted people use screen-reader software to access Web sites on the Internet. Web sites that are designed to be accessible to the blind include alternative text, which is invisible code embedded beneath the graphics of a Web site. The screen-reader software reads the alternative text aloud and describes the content of the Web site to Internet users who cannot see the graphics. Screen-reader software also makes it possible for blind Internet users to navigate a Web site using the keyboard, rather than the mouse, since the mouse pointer is difficult to locate on the computer screen.

In the Target case, Target argued that in the Ninth Circuit, places of public accommodation are deemed to be physical spaces, and, therefore, plaintiffs failed to state a claim because they were not denied physical access to Target stores. Although the court conceded that only physical spaces constitute public accommodations, it applied a nexus test to determine whether the plaintiffs had been denied any of the services of those physical stores, including services that may be offered off-premises, such as through a Web site.

The court stressed that Title III of the ADA applies to all of the services provided by a place of public accommodation ' it is not limited to services provided on the physical premises. Therefore, to state a claim, the plaintiffs did not have to allege that they were denied physical access to a Target store. In fact, the court noted that 'intangible barriers 'restrict a disabled person's ability to enjoy the defendant entity's goods, services, and privileges.”

Target also argued that it did not have to redesign the Target.com Web site to make it accessible, because the information available at Target.com was also available over the telephone and through other means. In general, a public accommodation may ensure accessibility by providing alternative formats or methods to persons with disabilities. A restaurant, for example, is not required to have menus in Braille, as long as waiters are available to explain the menu to blind patrons. The court rejected this argument as premature at the motion to dismiss stage, and noted the argument was available to Target as an affirmative defense in the future.

In rendering its decision, the court observed that many of the goods and benefits offered on Target.com were services of Target stores, and were integrated with goods and services available in Target stores. The court found a sufficient nexus between the challenged service and the public accommodation and, as such, denied Target's motion to dismiss. The court specifically held that the plaintiffs stated a discrimination claim under the ADA as to those aspects of Target's Web site that related to the full use and equal enjoyment of goods and services offered in Target's physical stores.

The court also allowed plaintiffs to proceed under analogous California statutes, the Unrue Civil Rights Act and the Disabled Persons Act. Both statutes provide that a violation of the ADA also constitutes a violation of these statutes. This is noteworthy because while Title III of the ADA does not provide for monetary penalties or compensatory or punitive damages, the California Unrue Civil Rights Act does ' up to three times actual damages or a minimum of $4,000 per claimant, plus attorneys' fees.

An Emerging U.S. Litigation Trend

For public interest and disability advocate groups, the Target decision represents the winning combination such groups have sought to unlock U.S. courthouse doors on the issue of Web site accessibility. Past efforts, at least in the United States, have been less successful.

In a prior U.S. decision, Access Now, Inc. v. Southwest Airlines, 385 F.3d 1324 (11 th Cir. 2004), the plaintiffs sought a declaratory judgment that Southwest Airlines' Web site, Southwest.com, violated Title III of the ADA because screen-reader software could not read many of the Web site's features, such as on-line reservations and Internet pricing specials. Unlike the plaintiffs in Target, however, those in Southwest argued only that Southwest.com was a place of public accommodation. They did not argue that Southwest.com was a service and that there was a nexus between the service and Southwest's physical ticket counters.

The Southwest case was appealed to the Eleventh Circuit, which returned a decision in favor of Southwest. The court never reached the merits and dismissed the appeal solely because of a procedural flaw. Specifically, the plaintiffs raised the nexus argument on appeal when they had not done so at the district court level. Notably, the court expressed some disappointment that it could not reach the merits. Following the decision, according to Access Now's Web site and February 2005 newsletter, Southwest Airlines voluntarily modified and enhanced its Web sites to permit access for the disabled.

Other Rulings

The Ninth and Eleventh Circuits were not the first Courts of Appeals to consider these issues. In Doe v. Mut. Of Omaha Ins. Co. , 179 F.3d 557, 559 (7 th Cir. 1999), the Seventh Circuit Court of Appeals stated that the owner of a Web site or other facility, whether in physical or electronic space, cannot exclude disabled people from entering the facility or using it in the same manner as the non-disabled. Similarly, in Carparts Distribution Ctr., Inc. v. Auto. Wholesalers Ass'n of New England, Inc. , 37 F.3d 12, 19'20 (1 st Cir. 1994), the First Circuit Court of Appeals held that the phrase 'public accommodations' is not limited to actual physical structures, but may also include 'services which do not require a person to physically enter an actual physical structure.' These decisions indicate that a private entity that has a Web site but no physical store or place of business may be a public accommodation subject to Title III of the ADA.

Although the ADA does not explicitly impose a Web site accessibility requirement, Congress has imposed explicit requirements on government employers and certain private transportation entities under Section 508 of the Rehabilitation Act. Also, the Department of Transportation has promulgated guidelines that require businesses in the transportation industry to make their Web sites more accessible to the disabled.

Whether because a company's Web site is a 'service' or because the Web site itself is a place of public accommodation, it is now much clearer that courts will interpret Title III of the ADA to apply to Web sites or Web site services. In California, and other states that may impose a broader range of remedies than does Title III of the ADA, class litigation challenging the accessibility of Web sites could lead to substantial liability, in addition to embarrassing publicity.

Web Site Accessibility Is a Global Issue

The potential for further development of U.S. law in this area seems apparent when considered in a global context. In general, the United States lags much of Western Europe and Australia in terms of the regulation of access to Web sites for the disabled.

The United Kingdom, for example, has made compliance with Web site accessibility guidelines mandatory for private employers. Since the amended United Kingdom Disability Discrimination Act of 1995 took effect on Oct. 1, 2004, all private employers must take 'reasonable steps to remove barriers or enhance Web site features to permit access by disabled persons.' Also, the Netherlands, Germany, and France have passed legislation requiring public employers to meet a minimal standard of accessibility. Finally, in Australia, a plaintiff successfully sued the city of Sidney for failing to create an accessible Web site for the 2000 Olympics. The plaintiff was awarded $20,000 USD in damages, and the court adopted international Web site accessibility guidelines as the benchmark for determining minimum accessibility standards for Web sites.

The task of determining what ought to be the minimum accessibility standards for Web sites was tackled several years ago by the World Wide Web Consortium ('W3C'). W3C issued international Web Content Accessibility Guidelines (WCGA) as voluntary guidelines for Web site designers to use in designing accessible Web sites. The guidelines, available at http://www.w3.org/WAI/ Resources/#gl, establish three standards of accessibility, 'A,' 'AA,' and 'AAA.' Web sites that comply with standard 'A' meet the minimum requirements for accessibility. Companies that strive to go beyond these minimum standards are encouraged to meet either standard 'AA' or 'AAA.' Examples of ways to achieve accessibility standards include:

• Accommodation of screen reader software by providing descriptions of video and alternative text for every non-text item, including hyperlinks;
• Avoidance of tables, columns, or disordered images so that the Web site reads from top to bottom;
• Where a Web site requires the user to enter information into a box on the page, label the box line by line so that it is clear what information is required in each field;
• No requirement for the use of JavaScript, Micromedia Flash, or other plug-ins that cannot be read by screen-reader software;
• Where a Web site does utilize plug-ins, provision of alternative content in case these features cannot be read by screen reader software;
• Captioning or transcripts of audio for hearing-impaired users; and
• Display of text against a contrasting background.

Various services are available over the Internet to 'test' the accessibility of a particular Web site.

Conclusion

The growing global trend toward requiring private entities to design accessible Web sites means that private entities should consider designing accessible Web sites now, while the risk of litigation is still low. Based upon the popularity of Internet pricing specials, on-line services, and on-line job recruiting, and the likelihood that U.S. law in this area will continue to evolve, companies can expect more lawsuits will be filed asking the courts to extend the coverage of the ADA and analogous state laws to Web sites.

While it may not be cost effective or necessary to design a new Web site from scratch, companies that are scheduled to redesign their current Web sites should aim to investigate, learn about, and comply with accessibility guidelines in conjunction with those plans. Retailers, particularly those with Web sites that support physical store locations, may wish to consider more urgent action.

David S. Baffa, a member of this newsletter's Board of Editors, is a partner with Seyfarth Shaw, Chicago. He represents companies in employment litigation and union avoidance matters. Kathryn S. Clark is a first-year associate with the firm, with prior experience at a management consulting firm.