[Accessibility_sig] Accessibility: Radio Shack takes a different path

[Sharron Rush]

http://www.law.com/jsp/legaltechnology/pubArticleLT.jsp?id=1189450985257

Companies, Courts Debate Whether ADA Applies to Web Sites

Advocates for the disabled are pressing companies to make their Web 
sites more accessible

By Sherry Karabin
Corporate Counsel
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, Minn.-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, Amazon.com Inc., promised to work with the NFB to 
make its site more accessible for the visually impaired. Ramada 
Franchise Systems, Inc., and Priceline.com, 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, Target.com 
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."