Americans With Disabilities Act Reaches Into Cyberspace

by Joe Laferrera

When the Americans with Disabilities Act was passed, it established a broad structure for addressing discrimination against individuals on the basis of disability. In addition to imposing a regimen of non-discrimination on employers and the government, the ADA brought within its protection “places of public accommodation.” Restaurants, office buildings, retailers and other places open to the public became obliged to provide disabled individuals full access and enjoyment of those facilities. Some of the first developments were easy to see, taking the form of wheelchair ramps and Braille signage. But now, 16 years after the law’s passage, the reach of the ADA may be extending into the virtual world. This Fall, a federal district court judge in California refused to dismiss a lawsuit complaining that a retailer’s web site was not sufficiently accessible to shoppers with visual impairments. The suit asserted claims under the ADA and California anti-discrimination laws. While it is unlikely to spell the end of Internet shopping as we know it, the ruling does raise important issues that e-commerce players would do well to understand.

The case, National Federation of the Blind v. Target Corporation, was brought as a class action against the Target chain of retail storesby a blind man and two advocacy groups for the visually impaired. The plaintiffs (collectively referred to here as NFB) alleged that visually impaired users could not readily use the company’s Target.com web site due to shortcomings in its design. Specifically, NFB alleged that the Target.com site failed to use so-called “alt tags,” which are brief textual descriptions of images that appear on a web page. While “alt tag” text is typically not visible when using a standard web browser, special “screen reading” software used by blind and visually impaired individuals rely heavily on such text to provide descriptions of visual elements. NFB asserted that alt tags are widely used in the industry, and that Target could implement them at a nominal cost.

To Target, however, the cost of revamping its web site is beside the point. The company asserted that the ADA simply does not apply to its online presence. Seeking to deprive NFB of a place on which to hang its ADA hat, Target claimed that, unlike its brick-and-mortar stores, Target.com has no physical location and therefore cannot be a “place of public accommodation.” Courts are split on the question of whether “places of public accommodation” must be physical places. For example, a federal appeals court in the Ninth Circuit concluded that an insurance company offering a discriminatory insurance policy could not be sued under the ADA because, while the company’s offices were places of public accommodation, the company itself was not. Conversely, a federal appeals court in the First Circuit (which includes Massachusetts) reached the opposite conclusion, holding that “public accommodations” may include not only an insurance company’s offices, but the company itself. At least with respect to this issue, the California court sided with Target, reading into the statute the requirement of a physical location.

That conclusion did not end the analysis, however. Because although the court declined to view the Target.com web site as a public accommodation in and of itself, it considered at length the relationship of the web site with the company’s brick-and-mortar stores. This follows from the fact that the ADA does more than merely prohibit discrimination within the four walls of a place of public accommodation. Rather, it extends to “goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation.” As an example, the court recounted a case brought against the producers of the “Who Wants to Be a Millionaire?” television game show, who had used a telephone screening process to identify prospective contestants. The process was held to violate the ADA by discriminating against people with hearing disabilities, even though it did not occur in the studio – the public accommodation – where the show took place. As the court succinctly explained, “[A] plaintiff may allege an ADA violation based on unequal access to a ‘service’ of a place of public accommodation, [if] there is a ‘nexus’ between the challenged service and the place of public accommodation.” Consequently, if NFB alleged facts sufficient to demonstrate that Target.com was actually a service of Target’s retail stores, that could sustain its ADA claim.

The court found that such a nexus did, indeed, exist. Aside from being able to directly purchase items on Target.com, customers can perform a number of store-related functions on the web site. These include accessing information on physical store hours and locations, refilling prescriptions or ordering photo prints to be picked up at a specific Target store, and printing coupons for use at Target stores. Based on this, the court concluded that Target.com is a service of Target stores, and falls within the ambit of the ADA.

Target argued that, even if such a nexus exists, its web site need not be changed because the information it provides is available to blind and visually impaired users through alternative means – such as by telephone. The court, while not rejecting this defense, said that Target would only be able to make such a showing later in the litigation. Thus, while NFB has not yet established a violation under the ADA, it has earned the right to try to make that showing.

The court’s decision in NFB v. Target Corporation is significant, and sends a message that the World Wide Web is not a safe haven from the obligations of accessibility and equal enjoyment under the ADA. But the opinion’s direct impact on other retailers, and more generally, public web sites, is far from certain. First, it is only a federal district court opinion, and until several circuit courts (and perhaps the Supreme Court) weigh in, the jurisprudence of cyberspace discrimination will remain fluid. Second, the decision hinges heavily on its facts, and is more limited than it appears. Had the case been brought against Amazon.com instead of Target, the lack of physical retail outlets would have drastically changed the analysis. So, too, one might have expected a different result if Target.com were exclusively an independent retail venue, and not also a means of enhancing customers’ shopping experiences at Target stores. Finally, it is still early in the litigation process, and Target’s defenses have not yet played out. The questions of whether toll-free 800 numbers or web site design considerations can ultimately repel such claims remains to be seen. In the end, though, if you use the Internet as a door to your business, you may want to give some consideration to building a ramp. ∆