Clearer Vision

Target lawsuit may force retailers to rethink Web sites

In February 2006, then 24-year-old Bruce Sexton filed a lawsuit against Target Corp. saying he couldn’t “read” its Web site. Although Sexton is blind, the University of California-Berkeley student claimed that the site failed to use screen-reading software that allows visually impaired shoppers to hear audio descriptions of what’s displayed on the page.

Sexton, along with the National Federation of the Blind, allege in the lawsuit that has “thousands of access barriers that make it difficult, if not impossible, for blind customers” to visit, navigate and shop the site. The plaintiffs argue that other retailers use software to allow access to blind computer users. A federal court judge issued rulings on Oct. 2, 2007, certifying a federal and state class of plaintiffs in this case and denying motions to dismiss filed by Target. While Target has not been found liable under any of the actions and has not been ordered to make modifications to its Web site, these rulings will result in the case moving forward to a trial.

At the trial, most likely to be held in 2008, the plaintiffs will have the opportunity to prove their claims that Target’s Web site violates federal and state laws prohibiting discrimination against the 1.3 million blind people in the United States and blind residents of California, while Target will present its defense.

Although the case is still pending, the issue has sent a red-flag alert to the e-commerce world, leaving retailers wondering how accessible Web sites need to be for those with visual disabilities. According to a Reuters report, the visual impairments at hand may include everything from total blindness to color blindness to those who need to see larger characters.

Benita Kahn, an attorney at law firm Vorys, Sater, Seymour and Pease LLP who has worked with Web-related issues involving the Americans with Disabilities Act (ADA) in the past, said other decisions addressing Web sites and the ADA had different results than the Target case.

Kahn said that the greater concern with this decision, depending on the ultimate resolution, are the rulings that address the two California laws, the Unruh Act and the Disabled Persons Act (DPA). For example, the court ruled that no nexus, or connection, was required under these California laws between an inaccessible Web site and a physical place of public accommodation, and ruled that the class could pursue damages under the California laws. Minimum statutory damages range from $4,000 to $1,000 per offense.

“Retailers should take a step back now to see if their Web sites were created in a way that would be accessible to blind-reader applications,” Kahn warned.

Under the ADA, businesses must provide access to people with mental and physical disabilities. Some recent lawsuits focus on what Web-site owners should be required to do to make their pages accessible to the disabled.

“When Web sites first started to pop up in the mid-1990s, companies were focused on how to make it a commercial operation,” Kahn said. “It is unlikely that e-commerce sites thought about this issue. In fact, at the time the California DPA was enacted, the Netscape browser had not been introduced.”

Since screen-reading applications are not difficult to implement, retailers need to revamp their sites to not only comply with the law, but to extend an equal opportunity for all consumers to shop. Kahn suggests that as retailers create new sites or revise existing sites they speak with their IT team or consultants who can provide input on making their site accessible to these blind-reader applications.

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