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California court tilts towards mandating web accessibility out of sight for blind people

Federal law

The ADA says that places of public accommodation must be accessible to the disabled. It lists examples, but websites are not mentioned. Consequently the NFB's original claim under the ADA was a narrow one: it identifies not as a place of public accommodation but as a service and benefit offered by Target stores in California. It is the physical stores that are places of public accommodation.

So while the NFB argues that a blind person's inability to place an order at is a breach of the state laws, its claim under the ADA is unusual. It says that the site's store locator, which helps shoppers to find a local store and opening hours, is not accessible to blind users. Blind users cannot locate discount coupons on the site, designed for printing and redeeming in-store, the NFB argues.

Sexton had explained to the court that he visits several stores' websites before shopping, something the court referred to as 'pre-shopping'. However, Sexton did not establish how his difficulties with have impeded his access to the goods and services in the store, Patel noted. "He states only that he has been 'unable to use for th[e] purpose' of pre-shopping and that he has been unable to use the weekly advertisements on for use in the stores," she wrote, pointing out that he had still reached the stores without incurring increased expense.

Accordingly, Target won a motion to dismiss Sexton's ADA claim, though Patel ruled that another plaintiff can be substituted on this claim, provided one is found within 30 days of the September 28th court order.

Class members "who have been deterred from shopping at Target altogether [by virtue of the inaccessibility of] have standing to proceed on their ADA claims," wrote Patel. It can also include those who incurred increased time and cost as a consequence of being unable to pre-shop. Patel noted that pre-shopping is an important aspect of in-store accessibility for blind shoppers.


Judge Patel concluded: "The nationwide class consists of all legally blind individuals in the United States who have attempted to access and as a result have been denied access to the enjoyment of goods and services offered in Target stores. The California subclass includes all legally blind individuals in California who have attempted to access, for plaintiffs’ claims arising under the California Unruh Civil Rights Act, California Civil Code … and the Disabled Persons Act, California Civil Code…"

Struan Robertson, a technology lawyer with Pinsent Masons and editor of OUT-LAW.COM, said the latest ruling could have a significant impact on web businesses in the US.

"We've got a really simple anti-discrimination law in the UK that basically means all sites must be accessible to disabled users, but America has never had such a straightforward rule," he said. "There has always been confusion about the duty that US websites face and this case could finally change that."

If the NFB claim succeeds against Target on state laws, there is a strong chance that many other businesses will be affected, he said. "The California laws could have the leverage to force businesses across America to build accessible sites, whether they're pure-play dot-coms or businesses that also offer high street stores," he said.

See: The ruling (33-page / 185KB PDF)

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OUT-LAW.COM is part of international law firm Pinsent Masons.

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