Case: National Federation of the Blind v. Target Corporation: Implications Beyond “Brick-and-Click” Retailers
Summary: Are websites required to be accessible to the blind? A case before the United States District Court for the Northern District of California directly addresses that question, and thus far, the answer seems to be “yes” if you are a business that uses your website to offer goods and services that are available in your “brick-and-mortar” store. The answer may also be “yes” if you are an operator of a website that may be deemed a “business establishment” or a “public place” in California.
While the concept of providing a website that is accessible to blind persons may sound like an anomaly to some, assistive technology makes it possible for blind and visually impaired persons to surf the Internet. For example, screen reader software can convert text into speech, so long as that the website is designed to allow the use of screen reader software.
In 2006, National Federation of the Blind (“NFB”) filed a lawsuit against Target Corporation (“Target”) (the “NFB v. Target litigation”), alleging that Target’s website, www.target.com, violated the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101, et seq., and related California statutes, The Unruh Civil Rights Act (the “Unruh Act”), Cal. Civ. Code § 51, and The California Disabled Persons Act (the “Disabled Persons Act”), Cal. Civ. Code § 54.
From the outset, NFB’s ADA claim against Target was limited by the statutory language. Title III of the ADA provides:
“No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.”
42 U.S.C. § 12182(a) (emphasis added).
In an earlier lawsuit filed by Access Now, Inc., another nonprofit disabled advocacy group, against Southwest Airlines challenging the inaccessibility of the southwest.com website, the court dismissed Access Now’s ADA claim because the claim was premised on the theory that the inaccessibility of southwest.com prevented access to Southwest’s “virtual” ticket counters, which are not actual, physical places of public accommodation. Access Now, Inc. v. Southwest Airlines Co., 227 F. Supp. 2d 1312, 1319-21 (S.D. Fla. 2002).
THE REQUISITE NEXUS BETWEEN target.com AND TARGET STORES
Learning from the Access Now case, the plaintiffs in the Target litigation allege that as a result of Target’s refusal to remove barriers to target.com, blind individuals are being denied full and equal enjoyment of the goods and services offered at Target’s brick-and-mortar stores. In other words, the theory of the case against Target is that the plaintiffs were denied access to the goods and services at Target stores as a result of their inability to access target.com. National Federation of the Blind v. Target Corporation, 452 F. Supp. 2d 946, 952 (N.D. Cal. 2006).
As set forth in the Second Amended Complaint, the features of target.com include:
- a store locator that allows shoppers to find the location and hours of a nearby Target store;
- an online pharmacy, through which customers can place prescription refills for pick-up at a Target store;
- an online photo shop, through which customers can order prints for pick-up at a Target store;
- coupons that may be redeemed at a Target store, and;
- online wedding and baby registries.
In support of their motion for class certification, the proposed plaintiffs’ class members submitted declarations alleging (1) that they were deterred from going to the Target stores because they were unable to find products or product descriptions on target.com, and (2) that their shopping trips to the Target stores took longer as a result of the inaccessibility of target.com, either because they were unable to “pre-shop” or because they had to resort to in-store help. See National Federation of the Blind v. Target Corporation, 2007 U.S. Dist. LEXIS 73547, *19-23 (N.D. Cal., October 2, 2007). For purposes of class certification, the court found these declarants to be sufficient, and certified a nationwide class consisting of:
“all legally blind individuals in the United States who have attempted to access Target.com and as a result have been denied access to the enjoyment of goods and services offered in Target stores.”
INTEGRATION BETWEEN target.com AND TARGET STORES
While limiting the ADA claim, for the time being, to those plaintiffs who were denied access to the enjoyment of goods and services in Target stores as a result of their attempt to access target.com, the court did leave open the door for expanding the scope of the claim if the evidence showed an “integrated merchandising” between target.com and the physical Target stores.
This aspect of the court’s ruling can be found in its original decision denying Target’s motion to dismiss, where the court observed in a footnote that there were questions as to whether “Target treats Target.com as an extension of its stores, as part of its overall integrated merchandising efforts.” 452 F. Supp. 2d at 956, fn. 4. “A broader application of the ADA to the website may be appropriate if upon further discovery it is disclosed that the store and website are part of an integrated effort. Parties may file briefing on this issue later if the court deems it appropriate.” Id.
REASONABLENESS OF ACCOMMODATIONS OFFERED BY TARGET
In certifying the class and in denying Target’s earlier motion to dismiss, the court specifically reserved for another day the question of whether in-store assistance and 1-800 customer service numbers offered by Target may constitute sufficient “reasonable accommodation” under the ADA. Id., *24; see also 452 F. Supp. 2d at 956. In addressing whether Target’s accommodations are reasonable, the court will no doubt take into consideration the nature of burden or hardship – i.e., the relative cost – to be undertaken in making the target.com website more accessible to blind users.
NO NEXUS BETWEEN “BRICK-AND-CLICK” REQUIRED FOR STATE LAW CLAIMS
The potential reach of the NFB v. Target litigation, however, is greater under applicable California laws.
Under both the Unruh Act and the Disabled Persons Act, a violation of the ADA is a per se violation of those acts. A “brick-and click” retailer like Target (i.e., a retailer with both a brick-and-mortar presence and an online presence) faces potential liability under the ADA and the two California statutes if it is found to be denying blind or visually impaired consumers equal access to the website, and thus to goods or services of a place of public accommodation.
The court in NFB v. Target, however, has ruled that neither the Unruh Act nor the Disabled Persons Act requires a nexus between the individual’s online experience and his or her experience at the physical stores. 2007 U.S. Dist. LEXIS, *28. The logical extension of such a rule is that any business doing business in California with a website is potentially subject to liability under these laws for failing to make its website accessible to visually impaired persons.
The NFB v. Target court’s decision was based on its reading of the statutory language. The Unruh Act provides that all persons are “entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” Cal. Civ. Code § 51(b). The Disabled Persons Act guarantees that individuals with disabilities “shall be entitled to full and equal access” to medical facilities, common carriers, telephone facilities, adoption agencies, private schools, hotels, places of public accommodation, and “other places to which the general public is invited.” Cal. Civ. Code § 54.1(a)(1). Based on its finding that the language of the two California statutes is broader than the ADA, the NFB v. Target court defined the California subclass to include “all legally blind individuals in California who have attempted to access Target.com,” regardless of whether those persons attempted to access the physical Target stores. 2007 U.S. Dist. LEXIS, *28-35, *66.
If other courts agree with the NFB v. Target court regarding the breadth of the California laws, then any business that directs itself to California residents, regardless of whether it is a retailer or it has a physical presence in California, faces possible exposure in the event its website is found to be inaccessible.
The NFB v. Target litigation is far from over. As of this writing, Target had petitioned the Ninth Circuit Court of Appeals to review the district court’s class certification decision. Target is also challenging the plaintiffs’ Second Amended Complaint. Other issues – such as whether Target has provided reasonable accommodation, and whether the application of the Unruh and Disabled Persons Acts to regulate websites like target.com violates the dormant commerce clause – will no doubt be subjects of heavily contested litigation and appeals.
Additional test cases will follow, as well as potential legislative intervention. Neither the ADA nor advances in assistive technology, however, will fade away. All businesses would be well advised to evaluate their websites in the context of evolving laws and technology to ensure that if it becomes a target of the next lawsuit, it can put its best foot forward to demonstrate the reasonableness of its conduct.