FYI – I’m a bit of a link-chaser, and that particular link led me eventually to Snopes and some enlightening information about tort reform. The battle against my ignorance has thus made some headway, though we still have a long way to go.
I have a novel idea. Let’s actually address the legal claims being made, the laws they address, and the ruling of the court.
The National Federation of the Blind (hereafter: NFB) is asserting three causes of action. First, they assert that Target Corporation (I’ll call them Target) is in violation of the Americans with Disabilities Act (ADA), specifically Title 42 United States Code §12182. Second, they allege that Target is in violation of California’s Unruh Civil Rights Act (Unruh Act), specifically California Civil Code §51(b). Thirdly, they claim that Target is in violation of California’s Disabled Persons Act (CDPA), specifically California Civil Code §54.1(a)(1). The original suit was filed in Superior Court in and of the County of Alameda (Oakland, in other words); Target had it removed to the District Court, Northern District of California. Target then moved to dismiss the claims. The ruling of 9/5/06 is what is under discussion here, issued by Judge Marilyn Hall Patel. In the ruling, she refused to dismiss any of the three causes of action. I’ll address each one in sequence, and in addition will address the very interesting Commerce Clause issue raised by Target and not ruled upon by Judge Patel (who considered it premature at this point).
ADA – Public Accommodation?
Now the meat of the discussion here is whether or not discriminating against people with visual impairments (I will dispense with the added requirement that the impairment be a disability; we’ll understand that non-disabled aren’t at issue here), resulting in their inability to use Target.com, or restricting their use to an unequal benefit, can be considered a violation of the above section. That is, is Target discriminating in the “full and equal enjoyment of the goods, [etc] of any place of public accommodation? I highlight the word “of” because the battle in these cases is over the meaning of the word “of” here. Not surprisingly, this is not the first case where someone asserted that a company violates the ADA by discriminating in the ability to utilize something other than a “brick and mortar” facility.
The law is not fully settled, but can be stated easily enough. The ADA isn’t just limited to access to physical sites. It can apply to services offered by public accommodations as well. For example, the 11th Circuit held that the telephone screening process used to determine who could be a contestant on the show “Who Wants To Be A Millionaire?” violated the ADA, since the studio itself was a public accommodation, and the screening was a service linked to that accommodation (Rendon v. Valleycrest Prod., Ltd., 294 F.3d 1279, 1280–81 (11th Cir. 2002)). But the judge asserted that there has to be a “nexus” between the service and the physical accommodation. Without such a connection, the service no longer is something related to a physical site.
Judge Patel ruled that the NFB had stated a valid cause of action. Specifically, she decided that a) NFB had asserted that inability to fully access Target.com had an impact on the ability of the visually impaired to fully enjoy the actual “brick and mortar” Target stores (which means that the claim will have to be proven at trial), and b) there was a significant “nexus” between the intangible Internet site and the tangible stores to allow discrimination in use of the intangible portion to be considered “of any place of public accommodation.” I’m not going to restate what the judge said; you can read for yourself if interested. She deals with the multiple cases in her order. However, some interesting points stand out:
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There is a split among the Circuits as to whether you actually need a physically tangible site to be a public accommodation; interestingly, the Ninth Circuit has determined you do have to have such a physical site at issue (so much for the vaunted liberalism of the Ninth Circuit).
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The issue of how much “nexus” need exist seems to have been largely ignored by the judge. While she offers lip service to the concept, she appears to require little more than that there be some link between the physical stores and the intangible service. Stated the judge:
This seems to do away with the whole need for a “nexus” which is certainly intended to be more than simply any connection at all between the two. And this creates a stupid dichotomy between Target.com and, say, Amazon.com, where there is no public accommodation to tie the service to. Is Target forced to do more than Amazon simply because Target also has “brick and mortar” stores? Can Target simply spin off its Internet store, so that it isn’t directly linked to the physical stores and avoid the application of the ADA?
- The “nexus” requirement itself is a compromise. It is interesting to note that the “nexus” requirement was not supported by a citation. This may be because the judge hoped to gloss over the genesis of the concept, which, frankly, would be a potentially fatal blow to her analysis in this case. The nexus requirement comes out of the Rendon case cited above. The language was used to deny a claim against Southwest Airlines for discrimination in their on-line reservations system, on the basis that the system had no nexus with a physical accommodation. Judge Patel glosses this holding by asserting that no such nexus was alleged, so the court in that case didn’t have to get into a discussion of the extent of nexus needed. But while the ruling in Access Now, Inc., v. Southwest Airlines, Co., 227 F.Supp.2d 1312 (S.D.Florida 2002) does not dismiss on the face of it such a claim, it simply is inconceivable that the assertion of the judge in that case that Southwest.com has no nexus to a physical site didn’t consider the possibility that Southwest.com should be considered tied to the actual brick and mortar facilities of Southwest Airlines in the airports the tickets purchased online serve.
Indeed, what this analysis by the judge shows is that the judge believes that the “physical” site distinction accepted by the Ninth Circuit should not be a bar to claims against Internet services. So she is adopting a very expansive reading of “nexus” to allow the suit to proceed. Indeed, it should be noted that, when she finally rules on the point, she never uses the term “nexus” at all. But note that the win by NFB is not unqualified. “To the extent that Target.com offers information and services unconnected to Target stores, which do not affect the enjoyment of goods and services offered in Target stores, the plaintiffs fail to state a claim under Title III of the ADA.” We shall see to what extent the judge accepts Target’s assertions in this regard as the case proceeds.
Unruh Act
California’s Unruh Act is a very aggressive law that, as interpreted by California courts, allows the state to shut down discrimination in a variety of forms that other states, and the federal government, do not consider objectionable. An example was the ruling that bars cannot offer “ladies nights” with special drink prices determined by the sex of the patron.Target asserted that they could not be held liable for violation of the Unruh Act because Target.com isn’t a “business establishment” (among other reasons). But the judge noted that the Act has been amended to specifically include claims under the ADA. So, as long as the ADA claim still exists, the judge need not address whether or not the Unruh Act would find liability outside of the ADA claim.
Similarly, the CDPA has been amended to include any ADA claim, so the merits of additional scope of liability under the CDPA cannot be addressed at this time, so long as the ADA claim survives.
Commerce Clause
Target asserts that the Unruh Act and CDPA claims should be dismissed under the Commerce Clause of the United States Constitution. Specifically, Target asserted that these laws, if applied to Target.com, would impermissibly regulate commerce activities occurring wholly outside of California, and that regulation of Internet commerce is, or should be, exclusive to Congress.
I won’t address these in great detail here; they do, however make for interesting reading. In dismissing these assertions, Judge Patel basically noted that, as to the first, it appears that Target could modify Target.com so that it dealt with customers from within California differently than customers from outside California, which, if true, would mean that any added scope to either the Unruh Act or the CDPA could be limited in its effect upon Target.com. Therefore, she considered the claim of federal preemption premature. I should note she goes into the law in question in detail, and offers substantial insight into what her ruling would be in what can only be considered a lengthy example of obiter dicta. It’s always nice to get a preview of how you are going to lose later.
In summary, this case revolves around two interesting aspects of the ADA. First of all, should it REALLY apply only to physical accommodations? And, if it does, to what extent must there be a connection between an intangible service and the physical accommodation? The answer is not clear. However, given that several circuits have already dispensed with the physical accommodation requirement all together (as has DoJ), and given that the judge in this case clearly believes that only a minimal connection need exist, I would not put large sums of money on Target being an eventual victor here…
Thanks for the above, DS. It helps us layfolk understand much better.
I still think that Target is being unfairly targeted as a test case and this should have been dealt with without litigation. Power of the purse and public education would have been probably as effective and definitely more sympathetic to the NFB.
That said, were I an executive at Target, I’d probably order two “separate but equal” (where have I heard that phrase before?) websites, one for the visually impaired (with a link from the homepage) and one for those who for whatever reason don’t wish to use the coded page. Several sites already do this with Flash and Flash-free or video/content-only variants of their sites.
Has Target said why they have not gone fully compliant? I can’t think that it’s an act of malice, and they’ve certainly paid far more in legal fees already that any changes would cost, so there must be some reason.
Hijack: A friend who took a second honeymoon to Greece a few years ago encountered a group of elderly American tourists at the Acropolis, several of whom were complaining about the lack of accessibility to the attraction and one swearing she was going to write to her senator because it violated the ADA.
Why?
It is not difficult to create/maintain, let alone retrofit an existing web site to meet accessibility requirements. Your separate but equal web sites scenario makes no sense, and quite a bit more expensive than necessary. Gone are the days of different web pages for different browsers. The technology is sufficiently mature that a single web site is able to render accessible content with any of the major and secondary web browsers out there today.
OTOH, changing attitudes of Target executives is proving to be the most expensive option that need not have occurred.
What I have read suggests that Target Corporation has taken a very visible stand among the internet business community that the Americans with Disabilities Act should not apply to web sites. Keep in mind that, in some circuits, the whole “brick and mortar” argument wouldn’t even have applied; in those circuits the Target.com site would have to be compliant with the ADA even if there were no physical stores involved (think Amazon.com).
My personal opinion is that, if Target and others simply applied Universal Design for Living concepts to the design of the website, they wouldn’t have to worry about it. Yes, it might mean a few fewer of these really fancy-dancy ads that annoy the crap out of us, but it would mean they wouldn’t have to worry about ADA suits.
A question—does this affect web sites for companies that (a) DO have brick-and-mortar stores but (b) do NOT have brick-and-mortar stores in the state in question? For example, if Target had no store in California, would California have jurisdiction to complain about their web site?
Hi, I’m not acquainted with “Universal Design for Living”, and I can’t seem to find a definitive web site. Would you happen to have a link that would explain what this is and how it applies to web site design? Just curious, thanks.
Target’s liability under the Americans with Disabilities Act (if any) is not limited to where in the United States they have their physical operations. That law is a federal law; the suit simply needs to be filed in an appropriate venue.
Target’s potential liability under both the California Unruh Civil Rights Act and the California Disabled Persons Act may exist regardless of brick and mortar operations of any kind. The extent of such potential liability has not yet been explored in the Target case, because all the court had to do at this point (ruling on a motion to dismiss) is determine that there could be SOME liability under SOME legal theory for violation of the statutes in question, and that exists so long as ADA liability exists.
I won’t get into a legal explanation of the extent of California’s potential jurisdiction to impose through its courts liability on Target if it had no brick and mortar presence in California under the California laws at this time. If someone really wants me to, I can do it, but I’d simply recommend you start out by looking in Wikipedia for the International Shoe case. 
Wikipedia: Universal Design. This contains links that will help you understand how Universal Design principles can be incorporated into technology such as computer software (like operating systems; on example: universally accessible control panels). 