Targeting your discriminatory website
Evan Brown reports about National Federation of the Blind v. Target Corporation, a suit brought against Target in a California federal court claiming that Target’s website violates the ADA:
Target asked the court to dismiss the lawsuit for failure to state a claim, and presented three arguments in support: First, it argued that the ADA only prohibits discrimination in physical spaces. Second, it argued that any off-site discrimination must still deny access to a physical space. Third, Target argued that the website provides auxiliary aid in conformity with the ADA, and therefore no violation exists.
The court looked first to Title III of the ADA, which prevents discrimination against disabled persons in places of public accommodation. … In rejecting the defendant’s first argument, the court emphasize[d] that the ADA applies to services of a place of public accommodation, and that the statute’s application is not limited to services offered in a place of public accommodation. This clear language indicates that the ADA applies to more than discrimination in physical spaces only.
The court next addressed defendant’s second argument, that off-site discrimination must deny access to a physical space to be considered an ADA violation. The court found this argument unpersuasive because the ADA prohibits non-physical barriers that keep a disabled person from enjoying the defendant’s goods and services. … Because the website is a gateway to a place of public accommodation, and because blind people cannot enjoy the services of the website, defendant may be violating the ADA.
The decision is here. As a conservative, I did not applaud when President George H. W. Bush signed the Americans with Disability Act. It struck me as the epitome of government-mandated kindness, though I remember beging grateful that we live in a country where — unlike so many — kindness, not cruelty, is demanded. I have never been too bothered, however, by the application of the ADA as a practical matter. The courts seem to have applied it with a degree of wisdom, and I haven’t noticed prices spiraliing out of control as a result of this unfunded mandate on the whole world.
The court did not give final relief to the plaintiff here. In fact, it denied the plaintiff’s motion for a preliminary injunction, and ruled only that the case could not be dismissed as a matter of law at this early stage of the proceedings. But it is mind-boggling to suggest that Congress had websites in mind, or would have, when passing the ADA. The concept of what the ADA could do to the Internet is impressive if you will give it some play. Here’s hoping Judge Marilyn Hall Patel, a Carter appointee (and the only federal judge I ever heard of who was elevated to an Article III judgeship from the municipal court bench, which may be a lower judicial rung than no robes at all — take that as you will; she seems to have had a distinguished career, including the Napster case), doesn’t.
Still, this is some of what makes good hearted people into conservatives, conservatives into (shudder) libertarians, and libertarians into people who live under boulders in the West Virginia brush. Which on the whole is not a terrible outcome, but I digress. Of course it is possible that the court will ruled that the ADA does apply to websites, but that reasonable accomodations to disabled users are not onerous. But it’s no accident that this case was brought in the activist Ninth Circuit. Keep an eye on this case, and if it is not eventually dismissed — or perhaps even if it is — join me in running, not walking, to Congress to demand that the ADA be amended to exclude Internet websites from its provisions.