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Target sighted – a hit but not quite a bullseye

By Ian Lloyd | September 14th, 2006 | Filed in Accessibility, General, Legal

The accessibility case against moves on to a new stage just when Target had really hoped it would actually be dropped. Bad news for the company, perhaps, but is it all good news for web accessibility advocates as some have read it to be?

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In the accessibility world, a lot of us curmudgeons 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 punished for not complying. Sure, there was the Sydney Olympics case and there was the … uh. Um. You get my point – you could cut off a few fingers on one of my hands and I’d still have enough left to count all the cases that have resulted in any kind of prosecution. We have been saying for years that if you mess up on accessibility you could be sued, but the longer it doesn’t happen, the more people will think we’re just ‘crying 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 effect – in California, the 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 decisive 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 as they had wanted, but they have not yet lost the battle overall. In fact, Joe Clark has suggested that they may yet even win the case. Regardless of which way the case ultimately goes, there is a precedent of sorts here, as Jared Smith states on WebAim:

While this is not a final ruling on the suit, but only a ruling on the motion to dismiss the case, it does set a strong precedence that online stores are covered by civil rights laws.

Further reading

Your Replies

#1 On September 14th, 2006 1:57 pm Joe Clark replied:

I expect you mean the case may have an effect. Also, there’s only one E in my name.

#2 On September 14th, 2006 5:42 pm WaSP Member lloydi replied:

Poo. I *always* spell your name wrong. A thousand apologies. Duly corrected … until the next time I get it wrong (and then correct it again)

#3 On September 15th, 2006 9:59 am Peter Hentges replied:

I think one of the important aspects of this ruling is that it extends the case and, therefore, expands the legal costs Target needs to expend in order to defend itself. At some point the cost of making a site fully accessible will be less than the cost of defending against such lawsuits. When that tipping point is reached not having an accessible web site will become an economic liability. That’s when we’ll begin to see far more companies come into line.

#4 On September 18th, 2006 3:07 pm Matt Robin replied:

Ian: Extremely good awareness raised by you about the issues surrounding this particular case (again). ‘Is illegal lack of adequate accessibility really getting enforced?’ The outcome of the Target case will be an acid-test for the web-industry at large….or will it?
Thanks to good articles like this one – there’s some recognition of what such a case means for others – but awareness among the public in general is probably quite low. Have Target’s sales been hit by the bad-press backlash caused by these charges? Maybe not (I’d like to see proof to suggest otherwise)…or…have they had to pay sufficiently high damages to the plaintiffs at any point? Again – no. What I’m trying to say is this: How much of the web, or companies and customers using the web, are critically aware of their resposibilities to provide accessible content and the consequences of not doing so? I’m sure the answer is disturbingly low. And if Target had to pay-up huge sums of cash tomorrow for their web-site failings (and readdress the inaccessibility of their site too) it would still get very little public awareness. People who need sites to be accessible CARE, people who care about accessible site design CARE….but ‘Joe Public’ who owns a company and wants his space on the Web is also one of the 30 Million+ users on MySpace right now who doesn’t give a shit whether anyone else can’t see what they see…or do what they do with their site.

Ian – you’re article is not just good…it’s brilliant and timely! :)
But when (if?) Target lose their day in court – I want the whole web to know and perhaps not just the Web Standards wing and Accessibility crowd. Is that a fair point to make?

#5 On September 25th, 2006 10:27 am Robert Wellock replied:

It’s good to know the case is still continuing and appears to be moving forward.

#6 On October 9th, 2006 11:06 pm pull to inflate » flight path » Out to Lunch says accessibilities in ‘no way possible’ replied:

[...] That’s a poor representation and far from the truth. No one is stopping you from learning braille – however, the current Target website doesn’t allow it’s users to access medication regardless of their attempts at learning a new method. Nevertheless, the subject of this lawsuit has been beat to death, and I grow weary of teaching to writers with quick tongues on subjects they know little about: [...]

#7 On October 10th, 2006 3:36 am Simon replied:

Well it is the likes of that are at least facing the need for increased accessibility, but it seems the money hungry wining folk are after the $$$ to prove a point and make more cases following this one succeeding. But as mentioned it will make the others come into line and wake up to the current needs and standards.

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