January 16, 2007

Surfing the web. It’s something most of us take for granted. Something we do every day. We use the web to perform many routine tasks such as reading the newspaper, checking stock prices and even shopping. It’s so convenient. We don’t have to go out in the rain or cold, we avoid those lines at the mall, and we save money on gas. For one group of disabled persons, however, surfing the web is not something that can be taken for granted. For the blind and visually impaired, many websites are inaccessible. A federal court ruling may soon change that along with the requirements that many business websites have to meet.

In order to access websites, the blind rely on computerized screen readers to read aloud the contents of the website. The computerized readers require "alternative text" (alt tags) to be embedded in the website in order to work properly. Alt tags provide brief text descriptions of the components of a web page. In many websites, these tags either improperly describe the contents of the website, or they do not exist at all, making it impossible for the screen readers to translate the website into words and therefore, impossible for the blind and visually impaired to access the website.    

In February of this year, a blind student, along with the National Federation for the Blind, filed a suit against one of those websites. They alleged that the website violated the American with Disabilities Act (ADA) because the site was not fully navigable by the blind and visually impaired.      

The ADA is applicable to places of public accommodation and it prohibits discrimination in the full and equal enjoyment of goods, services, facilities and privileges offered by places of public accommodation. The ADA lists 12 specific places of public accommodation, including retail stores, restaurants and theaters. The 12 are all physical places. Websites are not specifically mentioned in the statute as a place of public accommodation that must meet the ADA requirements.

Target.com was the target of this suit filed in the U.S. District court in the Northern District of California. National Federation of the Blind v. Target Corporation, No. C 06-01802 (C.C.N.D. Cal. 2006). Target claimed that their website did not have to comply with the ADA because it was not a place of public accommodation. The court ruled that the ADA did apply to the Target website but did not say that the website was a place of public accommodation. Rather, the court said that the website was a service of the Target stores. As places of public accommodation the stores are subject to the ADA. Since the stores are covered by the ADA, any goods or services offered by the stores are also covered by the ADA. The court said that the ADA applies to all services offered by a retail store, not just the services that are located in the store. Therefore, as a service of the Target stores, the website is also subject to the ADA, and Target cannot discriminate based on disability in providing access to the website.      

The court based its ruling on the fact that the website is heavily integrated with the brick-and-mortar stores, acting as a gateway to the stores because it allows customers to perform functions related to the stores. The court noted that, on the website, customers can purchase items available at the stores, access information on store locations and hours, refill prescriptions and order photo prints for pick-up at a store, and print coupons to redeem at a store. This was key to the court's ruling that the website was a service of the store, thus subjecting it to the ADA. However, the entire website is not subject to the ADA, only the parts of the website that offer goods and services connected to the store. The case is continuing to determine exactly which parts of the website are affected by this ruling.     

This ruling is the first of its kind. Although other websites have had similar actions brought against them, those websites, including Ramada Hotels, AOL and Priceline.com, agreed to make their websites accessible rather than fighting the suits in court.      

If this ruling is upheld, it will require many, but not all, retail websites to comply with the ADA. Whether the ADA is applicable to a website will depend on whether the business offering the website has brick-and-mortar locations and whether the website is integrated with those brick-and-mortar locations. Businesses such as eBay and Amazon.com, who do not have retail stores, will not be impacted by this ruling. If the websites offer goods and services connected to the stores, such as those offered by Target, they are likely to be subject to the ADA.     

Even though this ruling does not apply to all businesses who offer website services to their customers, the trend of making the internet more accessible to the disabled is not likely to end here. There are groups who feel that Congress should change the ADA so that it is applicable to the Internet. These groups note that the Internet was not a large marketplace for goods and services when the ADA was enacted. Now that it is, there is more opportunity for the disabled to be discriminated against because there are some discounts and other services that are only offered on the web. Such a change could greatly increase the number of business websites subject to the ADA.

This ruling is not final, the case will now move forward to the discovery phase to determine if the average blind person is able to access Target's website, and to determine which parts of the website are integrated with the store. Once these issues are decided, the ruling that Target's website is subject to the ADA can be appealed to the 9th Circuit Court which reviews decisions of the California District Courts. However, the push to make the internet more accessible to the disabled will continue. So, if you are planning to build or update a business website, you might want to include alt tags in your plan.

Coleen Penacho is an associate in the Employment Litigation Practice Group at McLane Law Firm.

Coleen can be reached at 603-628-1246 or [email protected]. The McLane Law Firm is the largest full-service law firm in the State of New Hampshire, with offices in Concord, Manchester and Portsmouth.