The Target Settlement – What Does It Mean?

Posted on Aug 31, 2008

Since the announcement earlier in the week that Target Corp and the National Federation of the Blind have settled their lawsuit, the topic of web accessibility has been very much front and center. For businesses, the $6 million award package serves as something of a wake-up call. For e-commerce practitioners, it’s a reminder that accessibility should be an integral component of any marketing plan. But what does the settlement really mean in the wide scope of digital accessibility?

First, let’s clear away some of the misinformation and hyperbole commonly found on various blogs and discussion boards. Although Judge Marilyn Hall Patel did mention the Americans with Disabilities Act when agreeing to hear the case in September 2006, the resulting settlement does not form a clear and distinct nexus between the ADA’s interpretation of “public accommodation” and a blind user’s experience on the Web. The effort to demarcate websites from physical stores was a crucial element to Target’s defense throughout the proceedings, and to some degree the language backs them up:

Currently, the ADA lists 12 specific “places of public accommodation” that must be fully accessible to disabled people. Those include a wide variety of locations, ranging from theaters and restaurants to private schools and day care centers. However, they all have one characteristic in common: they all have physical, real-world locations. Some groups have lobbied Congress to modify the ADA to explicitly cover the Internet, but the law has yet to be changed.

Reaction to the settlement has ranged from lukewarm to surprisingly disappointed; take some time to read insights from WebAIM, ComputerWorld and Metafilter). There have been cries that the NFB settled too low compared to Target’s annual sales revenue. Some accessibility advocates were hoping that the outcome of this case would conclusively establish a federal mandate on Section 508 and the ADA’s applicability to digital media. Others are miffed that the stated accommodations will mainly benefit the blind and not other groups with disabilities.

I’ll address the question of compensation first. The $6 million will be made available to those named as plaintiffs in the class-action suit. The court document states that “each Eligible Claimant shall be awarded: (i) three thousand five hundred (3500) dollars per Valid Claim, as determined by the Claims Administrator, with a maximum of two allowable Valid Claims per Eligible Claimant.” That’s a maximum of $7000 to be paid to a blind user who unsuccessfully attempted to access the Target website on two separate occasions. I realize that Target is a huge corporation, but the amount paid to each claimant isn’t insignificant.

Of much more intriguing consequence is where we now stand with regard to the ADA’s applicability to digital media, and whether these federal mandates can be directed to commercial retailers. Given the lack of a legal precedent in this case, I think the outcome was about as good as could be expected. There wasn’t a legal requirement in place, no precedent for ruling, no provision for compensatory damages. Although the ADA states that places of public accommodation must be accessible to the disabled, websites are not mentioned as an example of such. The NFB was thus forced to consider Target.com not as a physical place, but as a service and benefit offered by Target Corp by way of stores located in California.

Keep in mind one thing: the lawsuit was always much more linked to state law than federal law. As a result, the decision doesn’t (and wasn’t likely to) advance the ADA’s reach into the accommodation of Internet users with disabilities. Of much more specific relevance was the Unruh Civil Rights Act of California, specifically California Civil Codes Sections 54 through 55.2 and the California Physical Access Laws, which requires accommodation for people with disabilities in multiple contexts, including electronic media. Mentions of Section 508 and Title II of the ADA can be found in California Government Code Section 11135-11139.8 (I added the boldface/strong type below for emphasis):

California Government Code Sections 11135 through 11139.8 provides protection from discrimination from any program or activity that is conducted, funded directly by, or receives any financial assistance from the State. This section brings into State law the protection of Title II of the ADA which ensures accessibility to government programs and also requires State government to follow accessibility requirements standards of Section 508 of the Rehabilitation Act, which ensures the accessibility of electronic and information technology.

I’ve added emphasis to the above quote to make a point: the language of Section 508 doesn’t directly apply to commercial websites. Attempts to threaten corporations with lawsuits for not creating an accessible web experience are misguided. Yes, it’s good business sense to accommodate all users. Yes, it’s much cheaper to factor accessibility into an e-commerce project early in the project lifecycle. This matters little in the court’s interpretation of “public accommodation” as it applies to Internet users with disabilities.

That said, I think the settlement is ultimately a good leap forward. The fact that the case was heard at all, and that a settlement favorable to the Plaintiff was reached, indicates that web accessibility is becoming more than a frivolous side-topic of nominal interest. Decisions made in state law can hopefully create the leverage necessary to force businesses to evaluate their e-commerce policies.

The most important legal precedent set is that a commercial retailer of Target’s scope and stature can be sued in a California court for providing an inaccessible website. In agreeing to hear the case, Judge Patel provided a foundation for future claims to be considered and discussed. In reaching a settlement, the District Court of California made a statement that claims of website inaccessibility were to be taken seriously.