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From: John Foliot
Date: Fri, Sep 08 2006 10:10AM
Subject: Legal Precedent Set for Web Accessibility
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Federal Judge Sustains Discrimination Claims Against Target; Precedent
Establishes That Retailers Must Make Their Websites Accessible to the Blind
Under the ADA: http://biz.yahoo.com/prnews/060907/cgth051.html?.v=55

JF
---
John Foliot
Academic Technology Specialist - Online Accessibility
Stanford University
560 Escondido Mall
Meyer Library 181
Stanford, CA 94305-3093

From: Jared Smith
Date: Fri, Sep 08 2006 12:50PM
Subject: Re: Legal Precedent Set for Web Accessibility
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John Foliot wrote:
> Federal Judge Sustains Discrimination Claims Against Target; Precedent
> Establishes That Retailers Must Make Their Websites Accessible to the Blind
> Under the ADA: http://biz.yahoo.com/prnews/060907/cgth051.html?.v=55

I've added a blog entry with some clarifications of what this really mean.
It can be found on our site at
http://webaim.org/blog/2006/09/08/target_lawsuit/

Jared Smith
WebAIM.org

From: Cynthia Waddell
Date: Sat, Sep 09 2006 10:50AM
Subject: Legal Precedent Set for Web Accessibility
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Everyone,
The NFB v. Target Judge's Order is now posted at the disability rights
advocates website at
http://www.dralegal.org/cases/private_business/nfb_v_target.php.

The Judge's Order is 26 pages and is posted in two versions- text and pdf.

Here is a brief summary based on my first reading - warning - this is a long
email- but definitely shorter than 26 pages!

1. In Footnote 2, the Court suggests that the legislative history of the
ADA is inconclusive on the issue of regulating private websites. As a
result, the Court declines to draw an inference since there is an absence of
congressional action. Target argued that although Congress amended the
Rehabilitation Act to require federal government websites to be accessible,
Congress has not amended the ADA.
2. In Footnote 4, the Court suggests that with more evidence, the court
could explore whether or not Target treats Target.com as an extension of its
stores - as part of its overall integrated merchandising effort. The Court
also finds it ironic that on one hand Target seeks to reach greater numbers
of customers and enlarge consumer-base by using the website - and on the
other hand- Target seeks to avoid compliance with the ADA. If the Court
deems it appropriate, the parties may file briefing on this issue.
3. Regarding Target's argument that the website is not a "place of public
accommodation," the Court declined to dismiss the action for failure to
allege a denial of physical access to the Target stores.
4. Regarding Target's argument that the ADA nexus theory only applies to
the denial of physical access to a public accommodation and therefore it is
not legally cognizable to claim that Target.com is inaccessible, the Court
reviews case law and finds that the argument is unpersuasive and therefore
the Court declines to dismiss the action for failure to allege a denial of
physical access to the Target stores.
5. Regarding Target's argument concerning the ADA "auxiliary aids and
services" provision, the Court finds that Target's challenge is premature
and again declines to dismiss the action on this basis.

Finally, the Court concluded that the plaintiffs have stated a claim in
their allegation that the Target.com website is inaccessible by impeding the
full and equal enjoyment of goods and services offered in Target stores.
This means that the complaint survives the motion to dismiss and the case
can proceed.

However, the Court granted a motion to dismiss the portion of the complaint
relating to information and services offered at Target.com that is
unconnected to the Target stores and said that this portion of the complaint
fails to state a claim under Title III of the ADA.

As for the Unruh Civil Rights Act claim, which is a State of California
statute amended in 1992 providing that a violation of the ADA is a violation
of the Unruh Act, the Court found that a claim has been stated because
Target.com is a service of a business establishment.

As for the Disabled Persons Act claim, which is a State of California
statute, although Target argues that Target.com is a physical place, since a
violation of the ADA is a violation of the DPA, the complaint states a
claim.

Next, regarding the Commerce Clause issue, which was extensively argued on
both sides, the Court declined to rule because it found that the commerce
clause was not triggered at this preliminary stage.

Lastly, the Court denied NFB's motion for a preliminary injunction but said
that after full discovery, they are free to again come before the court in a
motion for a permanent injunction.

As a result, the Court granted in part and denied in part Target's motion to
dismiss and NFB's motion for a preliminary injunction was denied.

Because the motion to dismiss was not granted in total, NFB can still
proceed with its claims, including those discussed above.

Best regards,
Cynthia Waddell

--------------------------------------
Cynthia D. Waddell, JD
Executive Director and
Law, Policy and Technology Consultant
International Center for Disability Resources
on the Internet (ICDRI)
Phone: (408) 691-6921

ICDRI is based in
Raleigh, North Carolina USA
www.icdri.org/CynthiaW/cynthia_waddell.htm

See My New Book!
Web Accessibility: Web Standards and
Regulatory Compliance by Apress
at www.icdri.org/WSR_Book.htm
Other Publications Include:
Constructing Accessible Web Sites
www.icdri.org/constructing_accessible_web_site.htm

Is your Site Accessible?
Find out now with Cynthia Says! http://www.cynthiasays.com
Endorsed by the American Council of the Blind,
the Cynthia SaysTM portal is a joint Education
and Outreach project of ICDRI, The Internet
Society Disability and Special Needs Chapter,
and HiSoftware.

From: Cynthia Waddell
Date: Sat, Sep 09 2006 1:10PM
Subject: Legal Precedent Set for Web Accessibility
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Hello Jim-
This particular Target argument was one of many raised on the basis of the
ADA claim - not the Rehabilitation Act. In other words, there was not a
claim or cause of action in the complaint based on the Rehabilitation Act of
1973 and its amendments, including Section 508.

Oral arguments by both parties included a discussion on whether or not the
Target.com website was a "place of public accommodation." Although the
Rehabilitation Act is the grandfather of the ADA in that it paved the way
for protections to be extended to the private sector, it was not used by
Target for that reason.

The Order states that Target argued that although Congress has amended the
Rehabilitation Act to address accessible EIT, Congress did not amend the
ADA. Target was arguing legislative intent. On this sub-argument, this
Court concluded that it could not infer that Congress intended the ADA to
apply to the Internet.

The issue of whether or not a website is a "place of public accommodation"
is still alive since the Court declined to dismiss the complaint on this
basis. Both sides presented arguments addressing case law where some
jurisdictions say it is a "place of public accommodations" while others say
it is not. I discuss these cases in my chapters for the Apress publication
that was released in July - Web Accessibility: Web Standards and Regulatory
Compliance.

I hope this answers your question.

Sincerely,
Cynthia Waddell


--------------------------------------
Cynthia D. Waddell, JD
Executive Director and
Law, Policy and Technology Consultant
International Center for Disability Resources
on the Internet (ICDRI)
Phone: (408) 691-6921

ICDRI is based in
Raleigh, North Carolina USA
www.icdri.org/CynthiaW/cynthia_waddell.htm

See My New Book!
Web Accessibility: Web Standards and
Regulatory Compliance by Apress
at www.icdri.org/WSR_Book.htm
Other Publications Include:
Constructing Accessible Web Sites
www.icdri.org/constructing_accessible_web_site.htm

Is your Site Accessible?
Find out now with Cynthia Says! http://www.cynthiasays.com
Endorsed by the American Council of the Blind,
the Cynthia SaysTM portal is a joint Education
and Outreach project of ICDRI, The Internet
Society Disability and Special Needs Chapter,
and HiSoftware.