National Federal of the Blind, et al

Slow motion wakeup call for web accessibility

By: Scott Bradner

The latest step in the lawsuit by the National Federation of the Blind (NFB) against Target Corporation played out in a Baltimore court early this year. The Court of Appeals for the Ninth Circuit denied a Target appeal that would have stopped the case. The case will now proceed. If the NFB prevails a whole lot of corporate websites will need to updated.

This lawsuit got its start in early 2006 when a blind UC Berkeley student decided to sue Target Corp. because the target.com website was hard or, at times, impossible for blind people to use. The lawsuit claimed that Target was violating the Americans With Disabilities Act (ADA) (See http://www.usdoj.gov/crt/ada/adahom1.htm) and some California state laws. (The amended complaint can be found here http://www.dralegal.org/downloads/cases/target/nfb_v_target_complaint.txt.) In September a California judge agreed that the case (case number C 06-01802 MHP) might have merit in that Target's website might qualify as "a place of accommodation" that is covered by the ADA. The lawsuit was ruled as qualifying to be a class action with a nation-wide class in October 2007 and now the Appeals Court has dismissed Target's appeal. The case should be back in court soon. (But, remember this is "soon" using a judicial calendar with runs rather much slower than Internet time.)

Initially Target argued that the ADA only applied to physical space and thus a website, which is not a physical space, was not subject to the Act. The judge did not agree that it was so clear cut, the judge did not make any final rulings, instead she said that any such rules would be premature. (Ruling at http://www.dralegal.org/downloads/cases/target/062_order_deny_PI_grant_part_MTD.pdf)

What will it mean to you if you run a website where you sell stuff to the public? How about if you are just giving away information? It is not all that clear yet. The first thing you will need is an accepted standard and a court ruling or specific guidelines saying just what conformance to the standard actually means.

The two major standards for web accessibility in the US are the W3C's Web Content Accessibility Guidelines (http://www.w3.org/TR/WCAG10/) and the US Government "Section 508" standards. (http://www.section508.gov/index.cfm?FuseAction=Content&ID=12). The Section 508 standards apply to US Government run or funded web sites and could be considered a safe harbor - if your web site meets these guidelines you should be OK.

It is harder to figure out just what would be required if you decided to follow the W3C guidelines. They are far more detailed and cover a much broader range of situations than do the Section 508 standards. The W3C Priority one guidelines are about the same as the Section 508 standards and the W3C standard says that these guidelines must be met if the web site is to be considered compliant. The problem comes from the W3C Priority 2 and 3 guidelines. I have not heard of any court decisions or a set of regulations that call out which of these guidelines a web site needs to meet to avoid being called non compliant with the ADA.

The Target case is proceeding slowly, but still should be seen as a wakeup call for web site operators. The handwriting is on the wall and it seems there is no small chance that the courts will rule for the NFB and even f they do not, Congress might not be far behind in fixing any lack. Of course, there is no requirement to wait until the courts rule, it is just fine to get a start now - in fact, it just might be the right thing to do.

disclaimer: The above is my reading of the legal tea leaves not Harvard's.