If you follow tech news at all, then you have undoubtedly heard that the National Federation of the Blind filed a class action lawsuit against Target Stores over the inaccessibility of their site. And you have also probably heard that that suit was recently settled. As a result of the agreement, Target will have to pay $6,000,000, legal fees, plus the cost of fixing and maintaining the accessibility of target.com
More important to some, this case failed to answer the question, if a business’s site is not accessible, is it breaking the law? I know many accessibility advocates were hoping for a clear legal precedent, which we did not get. If we had gotten one, my job probably would have gotten a lot easier, but in spite of that, I’m generally pleased with the outcome.
Unfortunately, I believe that this case has been misunderstood by many. Anytime new laws are proposed or legal actions commenced which may have any chance of effecting the internet, the outcry is immediate and often drastic. Along with that outcry, there inevitably come many rumors and incorrect assumptions. It is those false assumptions I would like to address and hopefully put to rest.
Of course, it is not my intention to discourage anyone from making their site accessible. Just because you are not legally required to consider your disabled users, doesn’t mean that there aren’t many good reasons to do so.
Before I go much further, I should mention in the interest of full disclosure that I am an active member of the National Federation of the Blind. Nevertheless, my opinions are my own and don’t necessarily reflect those of the NFB. Also, I am certainly not a lawyer, nor do I claim to be an expert on the ADA, so take my analysis with a very large helping of salt.
Now that that’s out of the way, it is my understanding that the NFB, in its lawsuit was not demanding that all web sites should be made accessible. Rather they were contending that business web sites should be made accessible. In addition, they were suing under a California statute, and under the Americans with Disabilities Act. Before we assume that, were the ADA to be applied to the internet, that it would mean expensive site redesigns and big lawsuits for every site someone considered inaccessible, we would do well to review what the law actually says. Keep in mind that we have to try to apply the statute to a digital domain, even though that’s probably not what the creators of the law were contemplating when they wrote it:
Title III of the ADA prohibits discrimination against persons with disabilities in places of public accommodation and commercial facilities. Places of public accommodation include over 6 million privately owned business establishments of all sizes such as restaurants, hotels, theaters, convention centers, doctors offices, retail stores, museums, libraries, private schools, health spas, and day care centers. Commercial facilities are businesses whose operations affect commerce, such as office buildings, factories, and warehouses. Public accommodations must: provide goods and services in an integrated setting, unless separate or different measures are necessary to ensure equal opportunity; eliminate unnecessary eligibility standards or rules that deny individuals with disabilities an equal opportunity to enjoy the goods and services of a place of public accommodation; and make reasonable modifications in policies, practices and procedures that deny equal access to individuals with disabilities, unless a fundamental alteration would result in the nature of the goods and services provided. They must also ensure effective communication through the use of auxiliary aids and services when necessary, unless an undue burden or fundamental alteration would result. They must remove architectural and structural communication barriers in existing facilities where readily achievable, and provide goods and services through alternative measures when removal of barriers is not readily achievable. When public accommodations or commercial facilities design and construct new facilities, or alter existing facilities, they must do so in accordance with the Standards for Accessible Design. Title III is enforced by the U.S. Department of Justice.
If you own or operate a business that serves the public you must remove physical barriers when “readily achievable,” which means easily accomplishable without much difficulty or expense. The “readily achievable” requirement is based on the size and resources of the business. So larger businesses with more resources are expected to take a more active role in removing barriers than small businesses. The ADA also recognizes that economic conditions vary. When a business has resources to remove barriers, it is expected to do so; but when profits are low, barrier removal may be reduced or delayed. Barrier removal is an ongoing obligation—you are expected to remove barriers in the future as resources become available.
(From Introduction to the ADA)
I wish to draw your attention to a couple key phrases from the above quote: “The ‘readily achievable’ requirement is based on the size and resources of the business.” That would seem to mean that if your company makes a lot of money, then it might be held to a higher standard than if it doesn’t. Also, it would appear that personal blogs, sites run as a hobby or just because and the like would not be covered by this. In short, the vast majority of web pages on the internet probably have nothing to worry about.
Second: “ Public accommodations must: provide goods and services in an integrated setting, unless separate or different measures are necessary to ensure equal opportunity; eliminate unnecessary eligibility standards or rules that deny individuals with disabilities an equal opportunity to enjoy the goods and services of a place of public accommodation; and make reasonable modifications in policies, practices and procedures that deny equal access to individuals with disabilities, unless a fundamental alteration would result in the nature of the goods and services provided.” (Emphasis added.)
If I am understanding this correctly, then if your site can’t be made accessible to a particular group, (something by the way which is much less common than you might imagine) then you are probably off the hook, at least as far as access to that group is concerned. However, you would still be responsible for making your site accessible to the rest of the disabled community. Also, for something important like this, you don’t just want to assume that a site feature can’t be made accessible, simply because you can’t think of how it might be done.
Finally, a lot of people have simply wanted to know, “What’s the big deal? Why does it matter if you can’t shop at Target? Just shop somewhere else and be done with it.” However, I dare say that the same people who ask this question would be outraged if Target would not allow them to shop there due to their race, religion, or other personal characteristic.
Most disabled people, in my experience, do not wish to place an undue burden on society, but they also do not wish to be second-class citizens. It may appear that this is all just about convenience, seeing how much money we can get from Target, or just plain stubbornness, but for us it is about the right to full participation in the world.
Is it really too much to ask that a major corporation with billions of dollars of income spend a few thousand on accessibility?
The issue with Target wasn’t that they did it wrong, or that it wasn’t perfectly accessible (something which is virtually impossible to achieve). Target’s problem was that they didn’t even try, and they ignored pleas to change. This is witnessed by the fact that their site lacked alt attributes until after the lawsuit was filed. Of course the missing alt attributes was only one of many accessibility problems with their site.
So, that’s my take on the whole situation. It would be interesting to hear a more official opinion on the legal situation from an attorney. In the meantime, we’ll probably have to wait for the next big lawsuit to find out whether the ADA covers web sites or not.