By Jeff Pietsch
Earlier this month, a California district court certified a class on behalf of blind internet users against Target.com under the American Disabilities Act and California law. National Federation of the Blind v. Target Corp. (N.D. Cal. Sept. 28, 2007). The class claims that the Target.com website is inaccessible to the blind and therefore violates federal and state laws prohibiting discrimination against the disabled. This ruling should give notice to website owners that websites, especially those available in California, should be made to be accessible to the blind.
The plaintiff, a blind college student, uses the internet for various reasons, including shopping. The plaintiff goes online to compare prices, research goods and make decisions about making purchases at physical stores. The plaintiff uses a screen reading software device to access the internet. The software reads embedded data on a website and vocalizes this information to the blind user. The plaintiff claims that the Target.com website fails to use such embedded data despite it being technologically simple and not economically prohibitive. The plaintiff claims that since Target.com lacks this embedded data, blind users are unable to navigate the website and are denied full and equal access to the physical target stores.
The court certified classes in this case based on federal and state law. The nationwide claim is based on the ADA’s requirement that all disabled people have full and equal enjoyment to goods and services of any place of public accommodation. Courts have been reluctant to hold websites to the standards set forth by the ADA because they are not considered to be a place of public accommodations. The court in this case, however, recognized that Target.com’s inaccessibility issues may have hindered the plaintiffs’ full enjoyment of the physical stores. The court found that Target’s physical store and its website are highly integrated. Many internet users use the website to pre-shop before shopping in the physical store. Target.com was inaccessible to the blind, and they were prevented from pre-shopping which caused some blind users to expend extra time and expense in shopping. In some cases, the blind users were diverted to more user friendly websites. The court held that the nexus between the website and the physical store was enough to cause harm to blind users who could not access the Target.com website. In these situations, plaintiffs who were unable to pre-shop did not have full and equal enjoyment of the goods and services at the physical stores.
Unlike the ADA, the California state disability laws do not require a nexus between a website and a physical store. The California Unruh Civil Rights Act and the Disabled Person Act (DPA) is not limited to restrictions on public accommodations. The Unruh Act regulates “all business establishments of every kind whatsoever.” Cal Civ. Code § 51(b). The DPA addresses “an accommodation, advantage, facility, and privilege of a place of public accommodation” and “other places to which the general public is invited.” Id. § 54.1(a)(1). Thus, the language of both statutes is broader than that of the ADA. The court reviewed the legislative history of both acts and determined that the nexus requirement is not required between the website and the physical store. Specifically, one court recently held that “business establishments” under the Unruh Act included an exclusively internet-based adoption agency. Butler v. Adoption Media, LLC, 486 F.Supp. 2d 1022, 1054 (N.D. Cal. 2007). In that case, the adoption agency discriminated against same-sex domestic couples in favor of married couples. The court found that no nexus was needed between the website and the physical place.
The DPA also is more expansive than the ADA. The DPA includes both physical and non-physical places and “other places where the public is invited.” There are no cases that hold that websites are included in “other places.” The court, however, holds that the there are no cases that exclude websites under this definition. In addition, the broad language of the DPA comfortably could include websites as places where the public is invited to. The court, therefore, found it was not necessary to find a nexus between the website and a physical store as the ADA requires.
This distinction may have important ramifications for web-based business in California. Under California law, it will be much easier for a plaintiff to prove harmed by a website for failing to provide full and equal enjoyment to its blind users. The plaintiff, in order to prevail, would simply need to show that they are injured in some way by not being able to access the website. The ADA, on the other hand, requires that there must be some nexus between the website and the physical store. Website owners should take note because this ruling will make it easier for claims to be brought against websites for disability discrimination, especially in California.