It’s a question many of us in accessibility have been waiting for years to be answered.
Does the Americans with Disabilities Act apply to the web?
Sadly, accessibility’s ultimate cliffhanger once again reaches an awkward denouement, leaving us deflated, and looking at yet another boring sequel. The National Federation of the Blind v. Target lawsuit, which promised to be a landmark case in determining the applicability of the ADA, was settled on Wednesday. The key provisions of the settlement have Target paying $6 million in damages to the members of the class action (which consists of legally blind people who have been denied Target’s online services), and agreeing to remove accessibility barriers to blind users by February of 2009.
As with most settlements, however, Target admits no wrongdoing, and so the ADA’s applicability to the web remains fuzzy. (Especially to a non-lawyer such as myself; please don’t consider this as anything like legal advice.) The legal ramifications of this case may not be as clear-cut as some of us would have liked, but it’d be hard to argue that after this decision people with disabilities are in any way on shakier legal ground.
One twist in this case was the application of two California laws: the Disabled Persons Act and the Unruh Civil Rights Act. Both of these offer protections over and above those of the ADA, for California citizens, such as the named plaintiff, Bruce Sexton. Even if we ignore the ADA for a moment, this means that sites who do business in California could be liable under these laws for denying access.
Whatever the legal ramifications may be, those of us who advocate accessibility don’t want to make this into a series of legal battles. There are no winners there. (Okay, besides the lawyers.) We want people to realize that engaging with people with disabilities well before the threat of legal action arises is always the best approach. When a company stalls and takes a case to court, delays, public relations nightmares, and skyrocketing costs are all that happens. In this case, Target will pay out well over $6 million in damages, when one-tenth–maybe even a hundredth–of that amount could have paid a dream team of accessibility-savvy designers ready to solve the actual issues at hand.
The question that’s on our minds today–whether ADA applies or not–ultimately doesn’t make much difference. In fact, it’s a major distraction from the heart of the matter. People of all kinds want to participate in all the activities the web has to offer. And many disability advocacy groups are reaching out to site admins to raise awareness of the barriers they face. The best thing you can do is to prepare yourself and your site with a little education and some fine tuning. When you’re in a lawyer’s office talking about the ADA, or any other accessibility statute, chances are you’ve already missed out on the most important part of the conversation. And that’s going to cost you, whether you win or lose.
Update: This post has been translated into Polish.
- #1 On August 28th, 2008 1:44 pm NJohnson replied:
Unfortunately, most people are unaware that some websites have barriers for people with disabilities. Even many web design/developers are unaware of this.
Even in Dreamweaver: image objects/rollover uses a mouseover mouseout event handler.
Would getting mainstream media attention to these issues help?
- #2 On August 29th, 2008 2:20 am Pat replied:
We do a lot of work with our clients on this, and the truth of the matter is that there no precedent set on the legality of Section 508.
Like the previous poster said, it really takes few changes to make the site mostly accessible.
- #3 On August 29th, 2008 12:38 pm Joe Clark replied:
The “legality of Section 508” is not in dispute for the organizations covered by it.
- #4 On August 29th, 2008 12:46 pm Joe Clark replied:
I think it’s actually more interesting how cheaply Target made out from this whole event. A $6 million settlement (maximum $7,000 per plaintiff) isn’t just peanuts, it’s an insult. But there’s more: Target pays NFB $50K up front and $40K a year thereafter to monitor its compliance, which NFB has to do at least quarterly. That barely pays half a salary.
NFB has to train Target employees (who, all of us here are aware, shouldn’t need this kind of remedial learning), but has to do so at its cost and without markup and bill no more than $15,000 per session in “actual expenses.”
The $20,000 donation to the California Center for the Blind (billed elsewhere as Bruce F. Sexton’s nonprofit organization) would surely be useful to them, but is not significant funding in any sense.
The unpleasant and contrarian NFB triumphs again: After suing a large American retailer, all it achieves is tested compliance in Jaws – through the use of second-rate HTML, no less, as tables for layout and many other 20th-century features are explicitly permitted. This is hardly a victory for accessibility. It may be a victory for certain specified blind people, who have now begun to rival the Deaf (sic) in doggedly looking after their own interests and nothing more.
- #5 On September 1st, 2008 5:35 pm Brice replied:
I’m a big advocate for web accessibility, but I do not believe the ADA should apply to the web. I’m kind of glad a precedent was not set.
Web accessibility is largely an issue of knowledge, something that unfortunately cannot be quantified and thus cannot be fairly applied in court. Unlike improving access to physical spaces where the cost of accessibility can be quantified and has a legitimate minimum cost of materials, the cost of creating an accessible website can vary tremendously from absolutely free to millions of dollars. Ultimately, there is no legitimate measure and every case would need to be taken to court, most likely resulting in a settlement just as this one.
Speaking as a web developer myself, the internet in its current state and in its rapid growth simply will not accommodate all people. There are no official web “standards”. There are best practices, but they are zero standards. And there never will be.
- #6 On September 5th, 2008 1:58 pm Dave replied:
Joe: I can’t speak for the $6mil/$7k per plaintiff numbers, but I can’t imagine how the payments to NFB for monitoring and training could possibly be low. It’s the simplicity of making a site accessible that made Target’s actions so offensive, but that same simplicity keeps the expense of monitoring and training very low.
- #7 On September 8th, 2008 10:47 am Richard Morton - Accessible Web Design replied:
This may help raise awareness of web accessibility as being a legal issue in some circumstances but unfortunately I think that having promoted the approach of fixing the problems before being taken to court for some years now, I see very little sign that anyone is taking any notice. I suspect that it will take a number of high profile court cases before there is a shift in attitude.
In the UK where the disability discrimination act is pretty clear on the requirement for accessible web sites (and has been so for the past nine years) there is still only very small dents being made in the problem.
- #8 On September 8th, 2008 2:01 pm Joe Clark replied:
Actually, Brice, the standard in court would not be the knowledge of the developer but the degree of disadvantage experienced by the disabled plaintiff. By that reasoning, an architect who (somehow) did not know how to make a building entrance wheelchair-accessible could never be challenged under antidiscrimination law. Ignorance of the law is, as they say, no excuse.
- #9 On September 10th, 2008 7:16 am geetha replied:
Web publishers are not required to comply with the Americans with Disabilities Act, a federal appeals court has ruled.
- #10 On September 12th, 2008 11:30 pm DennisSC replied:
Just another consequence of the importance of cyberspace. Not allowing access to a major web site really does, I supppose, amount to discrimination now.
- #11 On September 13th, 2008 3:56 pm Target Settles Accessibility Suit for $6mm - Matt Heerema : Web Design replied:
[...] Web accessibility advocates everywhere are completely deflated. I know I’m a couple weeks late on this but I had to chime in. I’ve been following this [...]
- #12 On September 14th, 2008 10:00 am Keith replied:
It would be nice if web developers did have to abide by accessibility guidelines by law. Then we could sue all the web sites that use CAPTCHA. FTW!
- #13 On October 10th, 2008 5:43 pm James replied:
If web developers abide to accessibility guidelines, then more people with disabilities will be able access the web to a fuller extent. Sometimes, its not just about moving forward…. look around at those who still need help!
- #14 On October 27th, 2008 4:52 pm Website accessibility lawsuit settled by Target | MS Tech News replied:
[...] the Web Standards Project: http://www.webstandards.org/2008/08/28/what-the-target-settlement-should-mean-to-you/ [...]
- #15 On November 12th, 2008 9:03 am Fairness Doctrine on the Web? replied:
[...] The Target corporation was sued in 2006 because it lacked accessibility to the blind. So Web Standards are now in place because of this finding. My take on the Target incidentally: if they are dumb [...]
- #16 On November 21st, 2008 10:04 am Target gives WCAG 2.0 a helping hand » iheni :: making the web worldwide replied:
[...] Target which reached a conclusion in August. Despite the ruling being a win for accessibility many criticised it as disappointing and not far reaching enough. This may be the case for some accessibility [...]
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