SETTLEMENT IN NFB v. TARGET CASE

On August 27, 2008 the National Federation for the Blind (NFB) and Target Corporation announced that they have resolved their longstanding differences regarding the accessibility of the Target website, by way of a class settlement agreement in the United States District Court, District of California.

The lawsuit began in September 2006, when NFB alleged that Target´s website was inaccessible to the blind and therefore violated the Americans with Disabilities Act (ADA), the California Civil Rights Act, and the California Disabled Persons Act. In an early motion to dismiss, Target requested that the court terminate the suit on the grounds that it was not legally required to make its website accessible. The Court denied the motion, and found that federal and state civil rights laws do indeed apply to the Target website. The court noted that, under Title III of the ADA, individuals with disabilities are protected against discrimination in "places of public accommodation." The court in Target noted, however, that - under Ninth Circuit law - a "place of public accommodation" is limited to physical locations and places, and would not, therefore, encompass internet websites. The court thus stated that "&[this] Circuit has declined to join those circuits which have suggested that a "place of public accommodation "may have a more expansive meaning."

This observation, however, did not bring an end to the court´s inquiry, as NFB´s legal theory was not that Target.com was itself a place of public accommodation, but rather that unequal access to the website denied blind patrons the full enjoyment of the goods and services of Target stores, which themselves are places of public accommodation. NFB thus advanced the argument that Target´s website was violative of the mandates of the ADA under the "nexus theory," which involves a claim of unequal access to a service of a place of public accommodation, where there is a "nexus" between the challenged service and the place of public accommodation. The court agreed with NFB, and concluded that the plain language of the ADA encompasses functions of places of public accommodation that go beyond the mere "brick and mortar" location, and that the ADA prohibits discrimination in the full enjoyment of the "goods, services, facilities, privileges, advantages, or accommodations" of any place of public accommodation; not in a place of public accommodation.

The court´s denial of Target´s motion to dismiss was the beginning of a series of rulings that did not bode well for the retail giant. On October 2, 2007 the court certified a nationwide class of all legally blind individuals in the United States who had attempted to access Target.com, as well as a California subclass of blind individuals who had attempted to access the website

Perhaps seeing the handwriting on the wall, Target has agreed to settle the matter. Under the terms of the settlement, among other things, Target will ensure that its website meets the requirements of the Target Online Assistive Technology Guidelines and that "blind guests using screen-reader software may acquire the same information and engage in the same transactions as are available to sighted guests with substantially equivalent ease of use." Target will also take steps to implement changes identified by NFB and Target technical personnel. Once these changes are made, NFB will certify the website through the NFB Non-visual Accessibility Certification program. Too, NFM will monitor the Target website, performing quarterly testing and annual user testing. NFB will also provide periodic, one-day training sessions regarding website accessibility to the retailer´s employees who are responsible for the Target website.

The settlement also has a monetary component: In order to settle all claims for damages on behalf of the California class members, Target will pay six million dollars to be allocated among the class.

The Target settlement is considered a bit of a mixed blessing by some, but is overall a very welcome development. On the downside, the fact that the case has settled means that there will be no forthcoming ruling that further affirms the right to accessible websites and the internet. On the other hand, the terms of the settlement make clear that the retail giant has been "persuaded" to make its website accessible, and has acquiesced to the momentum of website accessibility. In the long run, this outcome may be nearly as persuasive in the overall case for website accessibility as would another judicial opinion.

Read the full text of the agreement.