Access Matters

Preface: Visitors who have been here before might remember that I once worked as an Accessibility Consultant for IBM. I retired early this year after an extraordinary 40 year career with IBM. What follows are my own opinions and should not in any way be attributed to IBM.

There was no “settled law” when the suit was brought against Target, no legal precedent to stand upon. That was likely one of the strong motivations for the National Federation of the Blind to bring the suit; to force settled law, and to clarify (actually greatly extend) the Americans with Disabilities Act. There’s still no settled law and I think that’s a very good outcome!

Those who think the settlement did not go far enough raise three concerns:
1) No legal precedent is established. This concern is also stated as the ADA’s applicability to the web wasn’t confirmed.
2) The settlement for class action litigants should have been larger.
3) The accommodations are mostly for the blind and not other disabilities. Jared Smith says, “Additionally, there is no indication that the Target accessibility guidelines include anything that would benefit anyone except blind users.”

My views are very much different. I’ll address the concerns in reverse order, doing the easiest one first.

3) The accommodations are mostly for the blind and not other disabilities.

Well … the lawsuit was brought by advocates of the blind. What else should we expect? Lawsuits are very serious matters, intended to decide very specific, and often precisely detailed, disputes. The case was very specifically about access for the blind, not access for the deaf or those with motor skill or other disabilities. The settlement must legally answer the charge, and has no obligation to satisfy unspecified complaints.

Sure, we who know how to do accessibility right would suggest going further and satisfying other disabilities as well. If we were designing from scratch and had good reason to believe the full range of people with disabilities would visit the site, we should very strongly recommend accommodations that satisfy all. That’s not the case in a lawsuit. Specific complaint: specific settlement.

Having dealt with solving these problems, I’m know that satisfying the blind is one of the toughest disabilities to accommodate. I also know that many things done to help the blind also help other disabilities as well. While Jared Smith sees solutions for only the blind, I see help for many others as well. For example, making everything keyboard operable helps the blind, those with motor skill problems, and all the rest of us who choose to be keyboard centric. Applying orderly document structure and paying attention to good tab order helps not only the blind, but also people with certain types of dyslexia, as well as all the rest of us who appreciate plain simple order. Ensuring that forms completion has a logical tab order also benefits the dyslexic and all the rest of us. If any specific disability has been left out, it might be the deaf. Yet, I don’t know how much multimedia (needing captions) actually exists on the Target site, or is planned.

2) The settlement for class action litigants should have been larger.

Let’s look at the details.

First, there are numerous costs for reworking the site, and a payment schedule for having the site monitored for compliance. Yes, I’m sure Jim Thatcher will provide very good value for the money, but compliance verification should have been left to Target to decide on their own, not a part of the settlement. After your last reckless driving and speeding judgment, you might have been sentenced to safe driving school, but has anyone heard of having a policeman assigned to monitor your driving behavior for the next three years. Wouldn’t it have been enough to say, “We don’t want to see you back in court again” and leave it to Target to decide how to monitor their compliance?

Then, there’s $20,000 to the California Center for the Blind on behalf of the original litigant. I don’t know what the suit actually cost the Center or the litigant, so I won’t quibble with that.

The remainder of the $6M is for class action claimants, awarding them $3500 if the site failed for them once and $7000 if they had more than one failure.  $3500 is a lot of money for not being able to buy something. I have no idea how legal “damages” are calculated under the California Unruh law. Trebling is a fairly common practice. Yet, I have a hard time believing anyone would have a $1200 cash register receipt from Target. I have no idea what the average receipt is at Target, but it seems beyond belief that the typical customer averages much more than $350 per visit. Using $350 would make the compensation ten times the amount that someone might have purchased. It also looks as though the compensation was designed to satisfy about 1200 possible claimants (about the mid point between 850 claimants at $7000 and 1700 claimants at $3500).

My view is that $3500 is very generous compensation for the inconvenience of having to go somewhere else to shop. Consider the case where your local Target store was late opening one morning, or had a broken water pipe that kept it closed all day. You drove over and couldn’t buy that patio furniture you had been wanting. Should you get $3500 compensation for not being able to access the store? Sure, it’s an artificial scenario, but it’s simply not normal for people to be compensated for being unable to purchase something, especially when there’s a K-Mart down the street that carries essentially the same merchandise (and just might have an accessible web site).

Then, Jared Smith says, “I also believe the 6 million dollar settlement to be rather insignificant for a corporation that had $63 billion in revenue and $3 billion in net income in 2007.” Oh please! Are there still people who believe in punishing the big guys just because they’re big? Robin Hood politics doesn’t belong in this settlement. Just as the complaint was for a specific class of people, the blind, the compensation should be specific, relevant to the complaint, not to what a corporation earns.

1) No legal precedent is established. This concern is also stated as the ADA’s applicability to the web wasn’t confirmed.

Jim Tatcher says, “The importance is now evident. In my non-legal opinion, the Judge said that the ADA applied to Target.com (to the extent that the web site related to Target’s bricks and mortar stores) and, most importantly, that the California anti-discrimination law (referred to as the Unruh Act) applied to Target.”

Peter Abrahams says,  “The laws on accessibility apply to your site.” and, “The law is now clear and public…”

Not at all!

Yes, those statements would be true had the case gone to trial and Target had actually been found guilty. Target was allowed to settle without admitting any wrong doing. The case never went to conclusion. Judge Patel’s ruling that the ADA and Unruh apply was not legally determined. It is still unsettled case law, still as murky as it has always been. Just like previous attempts, none of the cases came to a conclusion sufficient to claim the ADA is applicable. Three notable attempts have all failed to uphold the ADA as applicable to the web. (Gumson vs. Southwest Airlines, Spitzer vs. Ramada and Priceline, and NFB vs. Target)

The ADA became law in 1990, well before the advent of the web. The accommodation parts of the ADA are about physical accommodations, and there is very specific language and guidance about what types of physical accommodations must be made; parking spaces, aisle widths, braille markings, wheel chair ramps, rest room components, and on and on. The ADA material is so specific about these physical accommodations that one has to have a very fertile imagination to think that any of it could possibly apply to the web, or any other electronic systems. Applying the ADA to the web is nothing more than wishful thinking, thinking that requires numerous tenuous extensions to get from physical buildings to electronic enterprise. This looks like yet another case of a court inviting a penumbra into its judgment.

I understand why people would like to see the ADA applicable. It is the closest existing U.S. legislation that has the power to punish non-governmental businesses for how the disabled are treated. Yet, it is obsolete when the Web is considered. The right thing to do is to modernize the ADA through legislative action, not through judicial action. Create new law that is appropriate for non-governmental electronic enterprise. Make it as specific for the Internet as the ADA has been for physical accommodations. Pass it and enforce it. Stop trying to turn old law into new with judicial activism.

My conclusion

I still believe as strongly in making accessibility improvements as I always have. Businesses will be very well advised to avoid the legal hassles and lost opportunities that Target, Ramada, Priceline, Southwest Airlines, AOL, and others have experienced in the past.  Yet, I’m not sure many will see these as strong enough lessons to call to action.

The real messages to businesses is that full accessibility is simply good for business. While I worked for IBM, one of my primary responsibilities was looking after the accessibility features of ibm.com. The corporation was dedicated to providing full accessibility, and simultaneously was also very understanding of the competitive advantage that comes from being more accessible than the competition.

Free enterprise thrives when burdensome regulation and governmental interference is at a minimum. Let the businesses decide how they want to operate. Assuming equally attractive lines of products and services, those businesses who ignore some customers will suffer, and those who invite all will flourish. The last thing any of them need is a bludgeon based on a legal whim instead of clear and accurate law.

This entry was posted on Friday, August 29th, 2008 at 8:13 am and is filed under Articles. You can follow responses to this entry through the RSS 2.0 feed. You can leave a response or trackback from your site.