5-22-2008 National:Target Corp.'s alleged refusal to create user-friendly options on its retail Web site for disabled customers has sparked a legal battle that could have ramifications for all Web-based businesses.
In some jurisdictions, the term "handicapped accessible" no longer applies only to companies' brick-and-mortar buildings. Under the Americans with Disabilities Act, disabled customers are entitled to access to the marketplace and, increasingly, that pertains to cyberspace.
"I think we will see an increase in lawsuits" based on this issue, said Gary E. Phelan, managing partner of Outten & Golden's Stamford, Conn., office. "It's a very important issue because it opens the door to people with disabilities."
BLIND INTERNET USERS
Last year, federal Judge Marilyn Hall Patel in the Northern District of California certified the National Federation for the Blind's lawsuit against Target as a class action on behalf of blind Internet users throughout the country.
The plaintiffs allege that Target, since February 2003, has discriminated against the blind by "failing to ensure that all functions can be performed with a keyboard and not just a mouse." The complaint also said the Minneapolis-based retailer fails to make its site compatible with screen access software, also known as a screen reader, which converts the screen display into audible speech.
The court granted the plaintiffs' motion to certify a nationwide class under the ADA for injunctive relief to ensure Target keeps its site fully accessible to the blind. The court also denied Target's motion for summary judgment.
"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," said Dr. Marc Maurer, president of the NFB. "All e-commerce businesses should take note of this decision and immediately take steps to open their doors to the blind."
The court certified Brown, Goldstein & Levy, a Baltimore civil rights law firm, and three others as counsel for the class. "This is an area where litigation is only going to escalate," said Daniel Goldstein, partner of the Baltimore firm.
Federal circuits have split on whether Web sites constitute "places of public accommodation" for purposes of ADA coverage, he said.
The 1st Circuit has said Web sites are covered in its ruling in Carparts Distribution Center Inc. v. Automotive Wholesalers Assoc. of New England. But the 9th Circuit rejected the concept in Wyer v. Twentieth Century Fox Film Corp.
"The introduction of new technologies happens at a dizzying pace," Goldstein said. "Most can be accessible at marginal cost, but designers are not considering the needs of the disabled."
Goldstein predicted that many disabled customers will seek help in state courts, which can allow for significant damages compared to federal court, which allows for injunctive relief and attorneys' fees.
Phelan isn't so sure. Because of the limited damages available, he said, "I don't think you'll see a flood" of lawsuits.
CALIFORNIA LEADS
Lawrence Berliner, of Klebanoff & Alfano in West Hartford, Conn., is a veteran ADA lawyer who handled public accommodation issues dating to 1983, when he was employed by the State Office of Protection and Advocacy for Persons with Disabilities before joining his current firm. Historically, he said, when it comes to disability advocacy, California often has been a leader.
"Sometimes what's happening in California, with winds blowing West to East, will catch up elsewhere in the country," and because of that, he believes the class action lawsuit "certainly could have an impact" throughout the country.
Depending on what happens to Target, "other large corporations will pick up and take notice to see if they have any potential exposure," he said.
But there's no guarantee that there will be an increase in lawsuits filed here in state courts because of civil rights statutes on the books, Berliner said. Though the state has a broader definition of what it means to be disabled, the Connecticut General Statutes contain a more restrictive definition of public accommodation, he noted.
Sec. 46a-63 defines a place of public accommodation as "any establishment which caters or offers its services or facilities or goods to the general public ... ," which creates an interesting legal question in terms of defining a Web site as an establishment.
And for those found to be in violation of the statute, the penalties outlined in Sec. 46a-64 call for a fine of between $25 and $100 or 30 days in jail or both.
Phelan, of Outten & Golden in Stamford, said, "Rather than see [this debate] as a burden, businesses should see this as a marketing opportunity."
Indeed, online retailer Amazon.com announced in March 2007 that it was entering into a cooperation agreement with the NFB to make its Web site and some affiliated Web sites fully accessible to disabled people now and going forward with changing technology. ..more.. by
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