The following is Client Advisory reprinted with permission from the Weltman, Weinberg & Reis Co., L.P.A.:
Providing Online Accommodations for the Visually Impaired
By: Marsha Makel, Esquire
On August 27, 2008, the National Federation of the Blind and Target agreed to a class action settlement. The class action was filed against Target claiming that Target’s website (www.target.com) was inaccessible to the blind and therefore in violation of the Americans with Disabilities Act (“ADA”) along with two other California State Acts protecting the disabled. This settlement could have major implications for those who provide online services, even if the online services are in addition to other services where accommodations are provided.
In October of 2002, a similar lawsuit was filed against Southwest Airlines in the United States District Court for the Southern District of Florida. Access Now, Inc. v. Southwest Airlines, Co., 227 F. Supp. 2d 1312 (S.D. Fla. 2002). In the Southwest case, Plaintiffs alleged that Southwest’s website, www.southwest.com, “excludes Plaintiffs in violation of the ADA, as the goods and services Southwest offers at its ‘virtual ticket counters’ are inaccessible to blind persons.” Id. at 1314. In determining whether to grant Southwest’s Motion to Dismiss, the court looked at whether southwest.com was a “place of accommodation” as defined by the ADA therefore requiring Southwest to provide accessibility to visually impaired persons. Id. at 1315. The court focused on the definition of “facility” under the ADA which defines facility as “all or any portion of buildings, structures, sites, complexes, equipment, rolling stock or other conveyances, road, walks, passageways, parking lots, or other real or personal property, including the site where the building, property, structure, or equipment is located.” Id. at 1318, citing 28 C.F.R. § 36.104. The court determined that “to fall within the scope of the ADA as presently drafted, a public accommodation must be a physical, concrete structure. To expand the ADA to cover ‘virtual’ spaces would be to create new rights without well-defined standards.” Id. at 1319.
In addition, Plaintiffs in Southwest argued that the court should follow the First Circuit court, which broadly held that “the ADA’s definition of ‘public accommodation’ is not limited to actual physical structures, but includes, inter alia, health-benefit plans.” Id. at 1319, citing Carparts Distribution Ctr., Inc. v. Automotive Wholesaler’s Assoc. of New England, 37 F.3d 12, 19 (1st Cir. 1994). However, the Florida District Court cited to the Supreme Court and the Eleventh Circuit which both recognized the Internet as “a unique medium—known to its users as ‘cyberspace’—located in no particular geographical location but available to anyone, anywhere in the world, with access to the Internet.” Id. at 1321, citing Voyeur Dorm, L.C. v. City of Tampa, 265 F.3d 1232, 1237 n.3 (11th Cir. 2001); Reno v. ACLU, 521 U.S. 844, 851 (1997). Therefore, the Florida District Court concluded that based on the Internet having no physical, concrete space, Plaintiffs failed to establish a nexus between southwest.com and a place of public accommodation and therefore granted Southwest’s Motion to Dismiss. Id. at 1321-1322.
Up until this point in time the Southwest case seemed to offer protection against ADA claims for online services. However, the recent Target case has now reversed that mindset and companies need to re-evaluate their online services and accommodations for disabled persons.
In 2006, Target filed a Motion to Dismiss the ADA class action. Nat’l Fed’n of the Blind v. Target Corp., 452 F. Supp. 2d 946 (N.D. Cal. 2006). Target filed its motion claiming that Plaintiffs failed to state a claim because the ADA only covers “physical” spaces. Target relied on the Southwest case to support their argument. However, the court stated “the challenged service here [target.com] is heavily integrated with the brick-and-mortar stores and operates in many ways as a gateway to the stores.” Id. at 955. The court stated that the ADA applied “to the services of a place of public accommodation, not services in a place of public accommodation.” Id. at 953, citing 42 U.S.C. § 12182(a).
Although Target’s Motion to Dismiss was granted in part, the overall discussion by the court of the application to the ADA to online services weighed in favor of the Plaintiffs. Accordingly, Target settled this matter by agreeing to pay $6 million in damages along with making its website fully accessible to visually impaired customers.
The Target settlement and focus on this case creates the need for companies to re-examine their own websites. Even though the case law on the issue of web accessibility is still not clear, as the Internet continues to become fully integrated into our society there poses a greater risk of not taking the appropriate measures to ensure accommodations for the disabled. The ADA covers a wide spectrum in its definition of “public accommodation”. See 42 U.S.C. § 12181(7). Therefore, if your company uses its website to provide some type of service to the public, such as online banking or online payments, it would be in your best interest to see what programs exist to accommodate the visually impaired who access your website. The Southwest case provided a link with guidelines of how to make web content accessible to people with disabilities. See http://www.w3.org/WAI/about.html. This website may provide a starting point in determining what is required to make your website accessible. In addition, the National Federation of the Blind has a Nonvisual Accessibility Certification program that can help guide you. See http://www.nfb.org/nfb/certification_criteria.asp.
If you have any questions on this information, please contact Ms. Marsha D. Makel, Esq. Ms. Makel is an associate in the Compliance Department of Weltman, Weinberg & Reis Co., L.P.A. in Columbus, Ohio. The firm handles creditors’ rights issues and related litigation throughout Indiana, Ohio, Kentucky, Illinois, New Jersey, Pennsylvania and Michigan. Ms. Makel can be reached at (614) 857-4413 or via e-mail at mmakel@weltman.com.
Client Advisory is published by Weltman, Weinberg & Reis Co., L.P.A., an organization providing comprehensive creditor representation. The information contained in this advisory is a summary of legal information and is not intended to constitute legal advice on specific matters or create an attorney-client relationship. Contact any of our offices or visit our website at www.weltman.com for more information, company facts and attorney profiles. ©2008
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