WebAIM - Web Accessibility In Mind

E-mail List Archives

Re: LSAC Inaccessible Web Lawsuit


From: Cynthia Waddell
Date: Feb 26, 2009 10:25PM

Mr. Kroon:
You are correct in that the Target case was settled and that Target admitted
to no wrong. However, it settled after the class actions were certified.

I should have been more precise by saying that the reasoning by the judge in
this case regarding the class certification can be used and can be cited as
persuasive authority.

In this respect, in this jurisdiction we now have important persuasive
authority regarding the Certification of Class Actions under both the ADA
and the California State Statutes of the Unruh Civil Rights Act and the
Disabled Persons Act.

The fact that the court certified an ADA class action was significant
because it was based on the legal theory of nexus. This jurisdiction has
held that the Internet is not a place of public accommodation and for that
reason the ADA does not apply to websites of entities covered under the ADA.
Instead, what happened in the Target case is that the judge accepted the
nexus argument that the ADA applies to brick and mortar business websites to
the extent that their website also sells the same products and services.
The judge's reasoning in the Target case provides persuasive authority
regarding nexus.

Secondly, the court certified a class under the Unruh Civil Rights Act and
Disabled Persons Act for residents of the State of California. The judge's
reasoning for the class certification under the State Statutes was not based
on a nexus theory. Instead, the judge interpreted the State statutes to be
broader than the ADA in their protection against non-discrimination.

Thank you for asking. I hope my response is helpful and that it clarifies
my thinking.

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

ICT Accessibility & Government Services Expert
United Nations Global Initiative for Inclusive ICTs

ICDRI is based in
Raleigh, North Carolina USA

See My Books!
Web Accessibility: Web Standards and
Regulatory Compliance by Apress 2006
at www.icdri.org/WSR_Book.htm
See also Constructing Accessible Web Sites

Is your Web Site Accessible?
Find out now with Cynthia Says! www.cynthiasays.com
Endorsed by the American Council of the Blind,
the CynthiaSaysTM portal is a joint Education
and Outreach project of ICDRI, The Internet
Society Disability and Special Needs Chapter,
and HiSoftware.
-----Original Message-----
From: Kroon.Kurtis [mailto: <EMAIL REMOVED> ]
Sent: Thursday, February 26, 2009 8:23 PM
To: <EMAIL REMOVED> ; Zdenek, Sean
Cc: WebAIM Discussion List
Subject: RE: [WebAIM] LSAC Inaccessible Web Lawsuit

Question below ...

-----Original Message-----
From: Cynthia Waddell [mailto: <EMAIL REMOVED> ]
Sent: Sunday, February 22, 2009 10:29 AM
To: 'Zdenek, Sean'; 'WebAIM Discussion List'
Subject: Re: [WebAIM] LSAC Inaccessible Web Lawsuit


We will all stay tuned to this case since it is building upon California
case law established under the Target web accessibility case.


[Kurtis] I'm definitely not a lawyer, but:

* The case was certified as a class-action suit.
* Target settled without admitting any wrong-doing -- i.e., that their
website was inaccessible at any time prior to, during, or after the lawsuit.
* Part of the settlement included the creation of a set of guidelines to
ensure that their site worked with screen readers (interesting document, by
the way) ... "not that it didn't before, mind you" (see bullet above)

So ... don't these details prevent it from being cited as case law?

Kurtis Kroon
California Franchise Tax Board