You can choose compassion

Last week (2006.09.05), the judge hearing the case of NFB et al. v. Target (“Tarzhay”) released an interim ruling.

  • The defendants are Target and the plaintiffs are NFB et al. (or just “NFB”).
  • The plaintiffs claim that Target.com is inaccessible to blind people.
  • Target tried to get the case dismissed because it allegedly did not fall under the ambit of the Americans with Disabilities Act (ADA) and two other laws and for other reasons. Target lost: The case will continue.

All this means is that the motion to dismiss the case was denied. NFB et al. have not won the case. In fact, based on details published in the ruling (PDF), they might lose.

  • The interim ruling did not state that the ADA applies to Web sites. The judge, on most counts, refused to limit ADA application to physical stores. Web sites were not definitively ruled in.

    • Target claimed that the ADA applied only to physical stores; any claimed inaccessibility at the Web site did not impinge on Target’s physical stores. The judge disagreed, stating that one did not have to lead to the other. Target’s attempt to use that contention as a reason to dismiss the whole case was rejected.
    • The judge disagreed with Target’s claim that any discrimination occurred “away from a ‘place’ of public accommodation.” Presumably the use of that claim has been ruled out in similar future cases.
    • The judge did not determine that Target could not deliver equivalent information by phone; by implication, an accessible Web site is not the only method of serving blind customers outside a store.
    • It “is not at all clear” that an accessible Web site is comparable to an accommodation like Braille menus in a restaurant. Nor is it “clear” that adding “alt-tags [sic]… would alter the nature of the service.” If it did, then the ADA could not require such addition of “alt-tags.”
  • The other two nondiscrimination laws are triggered when an ADA infringement takes place. The judge dismissed them almost immediately for reasons comparable to her ADA-related decisions. An attempt to have NFB’s motion dismissed on the basis of other laws was rejected.

  • Target submitted that the NFB’s “motion is more appropriately conceived of as request for mandatory injunction, and, under the relevant legal standard, plaintiffs cannot demonstrate a clear likelihood of success.” Target claimed that NFB “cannot even make the initial factual showing that Target’s goods and services are inaccessible to the blind.” The judge refused to rule on the former claim, but effectively agreed with the latter one:

    The court need not reach many of these grounds of denial since defendant is correct in its assertion that plaintiffs cannot demonstrate that the relevant facts clearly favor a finding that Target.com is inaccessible to the blind.

    In support of its contention, [Target] submits the declarations of three blind individuals who allegedly have successfully navigated the Target.com Web site, searching for and purchasing products. See, e.g. [lots of punctuation altered]:

    • Dawn Wilkinson… noting that, with the use of screen reader Jaws version 7.0, “I was able to access Target.com, navigate the various links on the site, and search for specific products. I was also able to find the specific products I was shopping for, and browse through the various departments within Target.com.”
    • Dave Wilkinson [Dawn’s husband?], using Jaws version 7.1: “I spent a little more than two and a half hours on Target.com exploring the various functions and features on the Web site… I conducted searches on Target.com by category and department, and was able to find the products I was searching for. I was able to add my product selections to the Target.com virtual shopping cart, and remove items… that I later chose not to purchase.”
    • Tritten: “I thought using Target.com was fun. I enjoyed browsing the products sold on Target.com, and playing around with the Gift Finder feature. It was not difficult to access or navigate the site. I was able to access different departments, review products, and find out all sorts of details on product availability and return options.”

    [Target] assert that although the screen readers did not always work seamlessly on Target.com, the three individuals “were able to work around any difficulties they encountered and that they had an enjoyable experience on the Web site.” [Tritten:] “I usually have to do some groping around the first time I visit a new Web site, but I did not have many difficulties at all on Target.com”; Dave Wilkinson: “I was able to navigate and use the features on the site with little or no difficulty. When I did encounter an obstacle, or when a process was unclear, I was able to work my way around the obstacle without any significant difficulty.”

    In response, plaintiffs note that defendant’s declarants are not typical blind shoppers but “Web Olympians” with unusually high levels of skill in Web technology – individuals who enjoy the challenges of troubleshooting and the difficulties of overcoming barriers on a given Web site….

    [M]any of the [NFB’s] declarants admitted to spending a relatively short time on the Web site before concluding that the Web site was inaccessible…. Moreover, at least one declarant admitted to regularly visiting Target.com to conduct detailed “product searches” before going to a Target store to purchase the chosen products. Jacobson… noting that “it’s easiest sometimes to look at a Web site to see what products are available before we go there. I recall looking for specific products more than once in some cases, but my intention was to see what products were available.”

    It is evident from the foregoing that it would be premature for this court to rule on an injunction as there are sufficient questions raised with respect to whether the average blind person is able to access Target’s Web site [emphasis added]. Additional discovery is required before the trier of fact can adequately make this determination.

Advocates of accessibility need to be clear on a few things:

  • NFB didn’t win the case and might lose it. All that happened was that a motion to dismiss the whole thing failed.
  • The ADA has not been definitively ruled to include Web sites, let alone commercial Web sites.
  • Target, after submitting a seriously half-arsed expert-witness assessment, managed to find several screen-reader users who could operate the site just fine. It does indeed seem open to dispute that the site is inaccessible to blind people.

If anybody has Target’s publicly-filed legal briefs handy, please send them along.

It may further interest you to learn that, on 2006.07.26, Target informed me of an “RFP process we are conducting to evaluate vendors for Accessibility technology.” Such advisement pre-dated the nondisclosure agreement I entered into with Target. I did not submit a proposal to Target. I don’t know who else did, or if anyone did. I infer that whoever wins the contract is going to earn a great deal of money, but they will work mighty hard for every penny.

The foregoing posting appeared on Joe Clark’s personal Weblog on 2006.09.09 13:59. This presentation was designed for printing and omits components that make sense only onscreen. (If you are seeing this on a screen, then the page stylesheet was not loaded or not loaded properly.) The permanent link is:
http://blog.fawny.org/2006/09/09/tarzhay1/

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