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Accessibility, Law and Target.com

Accessibility, Law and Target.com

October 14, 2009
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" Do laws support this idea that access to the web is a civil right that everyone can enjoy? "

The web should be accessible to everyone. Access to the services, commerce and entertainment on the web is a civil right just like access to the pathways, shopping and entertainment in physical spaces. Do laws support this idea that access to the web is a civil right that everyone can enjoy?

Section 508 and the ADA
Section 508 of the Workforce Rehabilitation Act as amended in 1998 requires that the websites of Federal agencies be accessible. Section 508 has no direct bearing on public, non-government websites. But Section 508 has indirect effect on the accessibility of public information technology, as was the intent of the law. There is a robust set of accessibility standards developed as part of Section 508. Those standards serve to define accessibility of information technology. The idea is that companies will develop accessible technology to sell to the government and then use that same technology for all customers. When web development companies write accessible websites for federal agencies, they will be able to use the same techniques and practices for all clients.

The Americans with Disabilities Act (ADA) is a civil-rights law that prohibits discrimination against people with disabilities. In particular, the ADA requires that places of public accommodation and the services they provide be accessible.

Many believe the ADA applies to the web, as well as to brick-and-mortar establishments. In 1996, the Justice department issued a legal opinion that the ADA applied to the web. In 2004, New York State Attorney General Elliot Spitzer brought an action against Priceline and Ramada asserting that the inaccessibility of their websites violated the ADA. Note that Priceline.com has no bricks-and-mortar presence, while Ramada obviously does. That case did not go to court, and the two companies agreed to a settlement under which they assured the attorney general that they would make their websites accessible.

Another case is often referenced as one that held the ADA did not apply to the web. In a Florida court, a group of blind people sued Southwest Airlines, asserting that because Southwest's website was not accessible, there were benefits for doing business on the site that were not available elsewhere and the site was a "place of public accommodation" just like a brick-and-mortar store, Title III of the ADA applied to Southwest.com. The District Court in Florida dismissed the suit, and it was appealed.

On appeal, the plaintiffs argued that Southwest.com was a "travel service" and thus, subject to ADA. The appellate brief and oral arguments didn't even allege that Southwest.com was a "place of public accommodation." The Appellate court didn't rule on the travel service idea because it had not been raised in the District Court. The court didn't rule on the public accommodation issue because the appeal didn't raise that issue at all. The appellate court dismissed the appeal on procedural grounds.

However, the appellate judge did recognize the importance of the issues: "In declining to evaluate the merits of this case, we are in no way unmindful that the legal questions raised are significant," Judge Stanley Marcus wrote.

The Target Case
An important decision in U.S. District Court in California (United States District Court, Northern District of California, Case No. 06-01802 MHP) has shed some light on this question in a suit against the Target Corporation brought by the National Federation of the Blind (NFB). The NFB has sued Target, alleging first that Target.com is inaccessible and second that the inaccessibility of Target.com violates the ADA, the California Unruh Civil Rights Act and The California Disabled Persons Act. The NFB is represented by Disabilities Rights Advocates in Berkeley, Calif. There is discussion of the case on its website.

The Target Corporation petitioned the court to dismiss the NFB suit based mostly on its contention that the laws in question did not apply to web sites. At the same time, the NFB asked the court for a preliminary injunction requiring that Target fix the accessibility issues on Target.com.

On July 24, 2006, the court heard those petitions, and on Sept. 6, 2006, the court ruled that the case should move forward. Judge Marilyn Hall Patel rejected Target's arguments against the applicability of the laws cited by plaintiffs.

The judge also denied the request from the NFB for a preliminary injunction. In its arguments before the court, Target presented testimony of blind computer users, all of whom asserted that they could successfully use the site and thus, claimed the site was accessible.

Since Target's witnesses were able to use Target.com with "little or no difficulty," the court concluded that the question of the accessibility of Target.com was not decided and thus, refused to grant a preliminary injunction.

Accessibility of Target.com
In the role of expert witness for the plaintiffs in the NFB vs. Target suit, I submitted a report on the accessibility of Target.com, as well as a declaration. The report on the accessibility of Target.com is included as an exhibit at the end of the declaration. Chuck LeTourneau, co-chair of the W3C/WAI Working Group that produced Version 1 of the Web Content Accessibility Guidelines, is the expert witness for Target Corporation. Letourneau also submitted a declaration.

Evaluating the accessibility of a large website such as Target.com is usually accomplished by reviewing several of the most important pages on the site. To assess Target.com, 15 of the site's pages were analyzed: six top-level pages, as well as nine pages that had to be navigated in order to complete a purchase. In those 15 pages, alt-text was missing on 219 active images (links), none of the form controls were properly labeled and there was no accommodation for screen reader or keyboard navigation, such as skip links and HTML headings.

When I evaluated Target.com in July, 2005, there was one thing I found that was quite unusual. An essential step in the process of completing a purchase was impossible for anyone (including screen reader users) who did not use a mouse. Only a mouse click could activate the "continue checkout" button. It was impossible for a keyboard user to complete a purchase. That problem was corrected before the Target witnesses did their shopping on Target.com.

Those witnesses for Target spent between one and two hours on Target.com doing their shopping. NFB witnesses gave up quickly when confronted with the inaccessibility of the site. For example, because of missing alt-text on image map areas on the home page, more than 80 percent of the characters found by screen readers were gibberish, like "Ref equal sc underscore iw underscore l underscore 1 601 minus 9748238 minus 9274539? Percent 5 Fencoding equals UTF8 ampersand amp; node=3112881." All these characters coming from href values of areas without alt-text are not only meaningless, but also agonizing to listen to. In addition, the numbers are spoken in full by a screen reader, like "nine million seven hundred and forty eight thousand two hundred and thirty eight."

In her ruling, Patel stressed the importance of the connection between the brick-and-mortar Target stores and the web site, dismissing the NFB complaint "to the extent that Target.com offers information and services unconnected to Target stores, which do not affect the enjoyment of goods and services offered in Target stores." This strongly suggests to me that the entire suit would have been dismissed had the defendant been Priceline.com or Amazon.com.

However, even the issue of the nature of the relationship between the brick-and-mortar store and the web site will be addressed as the suit moves forward, and the court had this to say in Endnote 4:

"It appears from a review of the web site in question — which the court notes is not in evidence, but nonetheless does raise some questions — that Target treats Target.com as an extension of its stores, as part of its overall integrated merchandising efforts. See www.target.com. This suggests to the court that perhaps with more evidence, the court's determination of what may be covered under the ADA in this kind of integrated merchandising may be subject to amendment. The web site is a means to gain access to the store, and it is ironic that Target, through its merchandising efforts on the one hand, seeks to reach greater numbers of customers and enlarge its consumer base, while it seeks to escape the requirements of the ADA on the other hand."

So the NFB vs. Target suit will play out. Perhaps there will be a settlement without a final court decision. In any case, the question of legal support for the fundamental idea that access to the web is a civil right is still being formed.

Dr. Jim Thatcher, recipient one of the first PhD's in Computer Science in 1963, is a 37-year veteran of IBM's Research Department, where he pioneered the development of screen-reader technology. He is co-author of Web Accessibility: Web Standards and Regulatory Compliance, and works today as an accessibility consultant. He can be reached at send4jim@jimthatcher.com.


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