Is Your Website Accessible to All?

By Thomas R. Burke
[October 2007]

A federal court in San Francisco has certified a national class action lawsuit against Target Corporation for allegedly violating California and federal law by failing to make its website, Target.com, accessible to the blind. The lawsuit, filed by the National Federation of the Blind on behalf of one of its members in Northern California, alleges that the national retailer failed to enable its website to use screen-reading technology that allows blind users to access Target.com by having the content of a Web page audibly read to them. The plaintiffs contend they are denied “full and equal access” to Target’s 1,400 retail stores because they cannot readily access online, product and sales information that is used to make purchases in Target’s retail stores. Last year, the court dismissed claims brought by the plaintiffs that were based exclusively on features of the website unconnected to Target’s physical stores. “Brick and mortar” businesses that operate websites used by consumers to browse services or products that can be purchased at a physical location (e.g., a retail store) should pay particular attention to this ruling.

Since the lawsuit was filed, Target has modified its website to improve access, but these efforts did not render the case moot or preclude U.S. District Judge Marilyn Hall Patel from approving a class action of “all legally blind individuals in the United States who have attempted to access Target.com and as a result have been denied access to the enjoyment of goods and services offered in Target stores.” In its Sept. 28, 2007 order, the court focused on the alleged “increased time and expense incurred during in-store shopping as a result of the inaccessibility” of the retailer’s website.

Rejecting Target’s contention that equal convenience is not required by the federal Americans with Disabilities Act (ADA), the court noted: “A wheelchair user is not prohibited from entering a store without a ramp: that person could be carried into the store by the store personnel or hire a guide to do so. Nevertheless, those accessibility barriers, even where they may be accommodated, would generally violate the ADA. Similarly, the increased cost and time to surmount the alleged barriers presented by the inability to pre-shop demonstrate that these declarants have met the class definition. Target’s reliance upon their ability to accommodate blind shoppers through other means, such as in-store assistance or a 1-800 customer service number is misplaced at this stage.” (See page 12 of the court’s order.)

Target denies that it has violated federal and state disabilities laws and vows to continue to implement “new technologies to enhance the usability of our web site for all our guests.” Nor is the class certification ruling a decision on the merits of the case. Nevertheless, the court’s ruling highlights an issue that most eCommerce websites routinely overlook: the accessibility of their website to persons with disabilities. For millions of individuals—one-fifth of the U.S. population has some form of disability—the Internet can be a frustrating place. But it doesn’t have to be that way. Persons with hearing impairments can use closed captioning technology. Screen magnifiers and screen-reader technology can convert words on a website into a computer-generated voice. Websites that closely group links can be redesigned to help those with poor hand-eye coordination.

Owners of websites can take several practical steps to make a website more accessible:

First, using a tool available through the Center for Applied Special Technology (www.cast.org/bobby), any website can, in seconds, be evaluated for its compliance with the accessibility guidelines established by the World Wide Web Consortium’s Web Accessibility Initiative.

Second, websites can be designed (or redesigned) to be compatible with screen-reader and other accessibility technologies. Text that describes features available on a site can be added allowing the website to be “read” by the visitor. Both PDF documents and HTML versions of documents can be made available to site users; captions can be added to photographs appearing on the site. Closed captioning can be included for users with hearing disabilities. Sites that feature heavily clustered links to content—making it difficult for users to click on the links—can be redesigned to allow users to more easily navigate the site.

Third, a website can post “access instructions” on the home page: a description of the accessibility measures used by the site. See for example, the website operated by the City of San Jose, California: www.sanjoseca.gov/access.html.

Other accessibility resources are available through www.webAIM.org and www.w3.org.

Whether all websites must be compliant with federal and state accessibility laws remains to be seen. In the meantime, website owners who make their sites more accessible can gain new customers in the process.

For more information, please contact:

Thomas R. Burke is a partner in DWT's San Francisco office. His Internet practice focuses on all aspects of Internet liability issues. Mr. Burke is the author of "Disabilities and Internet Site Design," published in Internet Law & Practice (Thomson/West 2002). He may be reached at thomasburke@dwt.com or at (415) 276-6552.

This advisory is a publication of Davis Wright Tremaine LLP. Our purpose in publishing this advisory is to inform our clients and friends of recent legal developments. It is not intended, nor should it be used, as a substitute for specific legal advice as legal counsel may be given only in response to inquiries regarding particular situations. Attorney advertising. Prior results do not guarantee a similar outcome.

Copyright © 2007, Davis Wright Tremaine LLP.

return to bulletins main page