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By | OUT-LAW.COM 14th October 2007 02:11

California court tilts towards mandating web accessibility out of sight for blind people

California law may require websites to be accessible to disabled internet users, according to a ruling in a case against retail giant Target. Despite recent improvements to the accessibility of, the case has now been certified as a class action.

Target was sued by the National Federation of the Blind (NFB) and one of its blind members, Bruce Sexton, under a federal law, the Americans with Disabilities Act (ADA), and also under two state laws, the California Disabled Persons Act and the California Unruh Civil Rights Act.

The NFB and Sexton argue that is not accessible to blind internet users, in breach of these federal and state laws. They complained that images on the site were missing alternative text upon which blind users rely; keyboard controls do not work, meaning users must be able to work a mouse; and headings are missing that are needed for navigation.

US District Judge Marilyn Hall Patel in the Court for the Northern District of California had previously ruled that the inaccessibility of impeded full and equal enjoyment of goods and services offered in Target stores pursuant to the ADA. She has now ruled that the case is eligible for class action status and she rejected an effort by Target to have the case thrown out.

The President of the NFB, Dr Marc Maurer, said last week: “This is a tremendous step forward for blind people throughout the country who for too long have been denied equal access to the Internet economy. All e-commerce businesses should take note of this decision and immediately take steps to open their doors to the blind.”

Key questions in the lawsuit remain to be resolved, though. A UK lawyer said that these will be vital in determining the ruling's impact on other businesses in the US.

Improvements at

Since the case began, Target has made improvements to the site's accessibility. Target said that because it had made these changes, the claims against it are now "moot". Judge Patel disagreed. While it was accepted that accessibility had improved, making it "more likely that a blind user could complete a transaction," according to an expert for the NFB, it was noted that problems remain. Judge Patel wrote, "even the most favorable understanding of these modifications would suggest that only one aspect of the claims has been fully addressed: keyboard accessibility."

"Moreover, the continuous addition of new pages to argues against a finding of mootness," she wrote.

State laws

Noting that the language of the California state laws is broader than that of the ADA, Judge Patel found that websites should be covered. "[The] Unruh Act and the DPA reach as a kind of business establishment and an accommodation, advantage, facility and privilege of a place of public accommodation, respectively. No nexus to the physical stores need be shown," she said.

The Unruh Act provides that all persons in California are free and equal, and no matter what their disability "are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever."

The DPA guarantees that individuals with disabilities are entitled to full and equal access to various listed places, "and other places to which the general public is invited".

Judge Patel defined the class action as eligible to represent "all legally blind individuals in California who have attempted to access" under the Unruh Act and the DPA.

However, key questions remain on each state law.

Previous cases have suggested that the Unruh Act only applies to intentional discrimination unless the case is premised on an ADA violation. The NFB contends that disability discrimination is characterised by inaction, arguing that the previous ruling that saw a need to prove intention as inappropriate. Judge Patel sympathised: "the legislative history of the [Unruh] Act and its subsequent construction tilts in favor of [the NFB's] preferred reading," she wrote. But she stopped short of ruling definitively on the need to prove intention or whether that intent existed in this case.

Another key question that remains unanswered is the meaning of "full and equal access" under the DPA in the context of a website. What that means when setting the applicable standards "is still an open question," wrote Patel.

Federal law

The ADA says that places of public accommodation must be accessible to the disabled. It lists examples, but websites are not mentioned. Consequently the NFB's original claim under the ADA was a narrow one: it identifies not as a place of public accommodation but as a service and benefit offered by Target stores in California. It is the physical stores that are places of public accommodation.

So while the NFB argues that a blind person's inability to place an order at is a breach of the state laws, its claim under the ADA is unusual. It says that the site's store locator, which helps shoppers to find a local store and opening hours, is not accessible to blind users. Blind users cannot locate discount coupons on the site, designed for printing and redeeming in-store, the NFB argues.

Sexton had explained to the court that he visits several stores' websites before shopping, something the court referred to as 'pre-shopping'. However, Sexton did not establish how his difficulties with have impeded his access to the goods and services in the store, Patel noted. "He states only that he has been 'unable to use for th[e] purpose' of pre-shopping and that he has been unable to use the weekly advertisements on for use in the stores," she wrote, pointing out that he had still reached the stores without incurring increased expense.

Accordingly, Target won a motion to dismiss Sexton's ADA claim, though Patel ruled that another plaintiff can be substituted on this claim, provided one is found within 30 days of the September 28th court order.

Class members "who have been deterred from shopping at Target altogether [by virtue of the inaccessibility of] have standing to proceed on their ADA claims," wrote Patel. It can also include those who incurred increased time and cost as a consequence of being unable to pre-shop. Patel noted that pre-shopping is an important aspect of in-store accessibility for blind shoppers.


Judge Patel concluded: "The nationwide class consists of all legally blind individuals in the United States who have attempted to access and as a result have been denied access to the enjoyment of goods and services offered in Target stores. The California subclass includes all legally blind individuals in California who have attempted to access, for plaintiffs’ claims arising under the California Unruh Civil Rights Act, California Civil Code … and the Disabled Persons Act, California Civil Code…"

Struan Robertson, a technology lawyer with Pinsent Masons and editor of OUT-LAW.COM, said the latest ruling could have a significant impact on web businesses in the US.

"We've got a really simple anti-discrimination law in the UK that basically means all sites must be accessible to disabled users, but America has never had such a straightforward rule," he said. "There has always been confusion about the duty that US websites face and this case could finally change that."

If the NFB claim succeeds against Target on state laws, there is a strong chance that many other businesses will be affected, he said. "The California laws could have the leverage to force businesses across America to build accessible sites, whether they're pure-play dot-coms or businesses that also offer high street stores," he said.

See: The ruling (33-page / 185KB PDF)

Copyright © 2007,

OUT-LAW.COM is part of international law firm Pinsent Masons.

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