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Companies, Courts Debate Whether ADA Applies to Web Sites

September 6, 2007

Does the Americans with Disabilities Act apply in cyberspace? Without clear guidance from the courts, companies are deciding for themselves. Pressured by advocacy groups, some businesses have already taken steps to make their Web sites more accessible to the disabled. But other companies have said that while they'll voluntarily alter their sites, they aren't required to do so by the ADA.

RadioShack Corp. is the latest company to reach an agreement with advocates for the disabled. On June 13, the Fort Worth, Texas-based electronics retailer announced that it would make several improvements to its Web site for users who are visually impaired. The agreement grew out of negotiations between RadioShack and the American Council of the Blind and the American Foundation for the Blind.

"RadioShack believes that its products and services should be accessible to individuals with disabilities," says Mickey Clark, a senior litigation attorney at the company. "It was apparent that RadioShack and the [blindness organizations] shared a common goal, and we decided to work together to come up with a sensible solution."

By contrast, Target Corp. and the National Federation of the Blind are still fighting in court. The Minneapolis-based big-box retailer says that it made sufficient changes to its Web site after being sued by the NFB and blind individuals last year. The plaintiffs, however, maintain that Target has to do more. The company is now arguing that its Web site isn't covered by disability access laws, while the NFB says that it is. A hearing was held on July 31 on Target's motion to dismiss the suit and the plaintiffs' motion for class certification, with a ruling expected later this year.

According to Target spokesperson Carolyn Brookter, the company "believes our Web site is fully accessible, and complies with all applicable laws."

When Congress passed the ADA in 1990, it required that all "places of public accommodation" -- stores, offices, and the like -- be fully accessible to the disabled. But lawmakers failed to anticipate the wide range of technological innovations that have been adopted in the business world since then. The question that several disabled advocates have raised is whether a corporate Web site should be considered a "service" of a place of public accommodation. If it is, then Title III of the ADA would require the site to be fully accessible.

So far, challenges have largely come from groups representing the visually impaired. Many of these people use software that reads the text on a computer screen and then vocalizes it. Some of the words on a Web page, however, may not appear as plain text, but may be contained in a graphic or pop-up box. In order for the screen-reading software to pick up the information in these elements, a Web page must be designed with hidden features.

RadioShack agreed to do just this in its recent agreement with the blindness groups. Other companies have previously pledged to do the same. In March, Inc., promised to work with the NFB to make its site more accessible for the visually impaired. Ramada Franchise Systems, Inc., and, Inc. also agreed to alter their sites after reaching settlements with the New York state attorney general's office in 2004.

Not all businesses settle, however. Several years ago, Southwest Airlines Co. decided to let the courts rule on the merits of a challenge to its Web site. The suit, filed by Access Now Inc., another advocacy group for the blind, was dismissed by a federal district court judge in 2002. The dismissal was upheld two years later by the 11th U.S. Circuit Court of Appeals.

Target appears to be making the same argument as Southwest -- laws prohibiting discrimination against the disabled don't apply to Web sites. The retailer's defense may be a little tougher, however, since it's been sued not just under the ADA, but also under California state civil rights laws. In an answer filed last September, Target said that the changes to its Web site that the NFB is demanding "are not required under California or federal law, and any requirement to make those changes would impose an undue burden upon Target and would not be readily achievable."

Still, Target has made some changes to its site. In a brief filed March 8, the company said, "Since this action was filed, has been substantially modified, and the issues identified by the plaintiffs have been eliminated."

Daniel Goldstein, a partner at Baltimore's Brown, Goldstein & Levy who is representing the plaintiffs in the case, isn't persuaded. "Target's claims of accessibility are greatly exaggerated," Goldstein says. "[The company] confuses having done some things that need to be done, with doing everything that needs to be done."

The case is being heard by Judge Marilyn Hall Patel in San Francisco federal district court. Last year she dismissed some of the suit's claims, but allowed others to proceed. Perhaps most important, Patel has yet to rule on whether California law applies. She's expected to make this determination after the July 31 class certification hearing. Observers expect Patel to take anywhere from a few weeks to a few months to make her decision.

Given that the certification stage is such a risky point in a class action suit, why has Target let the litigation get this far? The company won't say. But law professor David Moss speculates that the retailer may be thinking about the bigger picture. According to Moss, who supervises the Disability Law Clinic at Wayne State University, "Target may be taking a stand on behalf of industry generally, which wants to leave the Web unregulated."

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