Do Web Sites Need to Be Accessible to the Blind?

Carla J. Rozycki and David K. Haase
Special to Law.com

January 10, 2007

An advocacy group has sued Target Corp., claiming that Target's Web site
is incompatible with software used by the blind and that such
incompatibility is a violation of the Americans with Disabilities Act
(ADA).

In National Federation for the Blind v. Target Corp. (__ Supp.2d __, 2006
WL 2578282 [N.D. Cal. Sept. 6, 2006]), the U.S. District Court for the
Northern District of California refused to dismiss those claims, leaving
many questions unanswered for entities operating Web sites. TITLE III OF
THE AMERICANS WITH DISABILITIES ACT

In 1990, Congress enacted the ADA to establish a comprehensive prohibition
of discrimination on the basis of disability and, in certain
circumstances, to require affirmative efforts to accommodate individuals
with disabilities. Title III of the ADA provides for accessibility of
places of public accommodation.

The ADA defines a "place of public accommodation" as a facility, operated
by a private entity, whose operations affect commerce and fall within at
least one of 12 specified categories. 42 U.S.C. §12181(7).

The statute and implementing regulations were enacted before the Internet
became an everyday tool and do not expressly state whether the Internet is
a place of public accommodation. The Department of Justice has
consistently taken the position that it is -- for example, through the
filing of amicus briefs.

Courts have split on the issue. The U.S. Courts of Appeals for the 6th and
9th Circuits and a district court in Florida have held that a public place
of accommodation must be a physical location. (See, for example, Parker v.
Metro. Life Ins. Co., 121 F.3d 1006 (6th Cir. 1997); Weyer v. Twentieth
Century Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir. 2000); Access Now,
Inc. v. Southwest Airlines Co., 227 F.Supp.2d 1312 (S.D. Fla. 2002),
appeal denied, 385 F.3d 1324 [11th Cir. 2004].)

In contrast, the 1st U.S. Circuit Court of Appeals has stated that Title
III of the ADA is not limited to purely physical structures, although that
court did not address the Internet specifically. (Carparts v. Automotive
Wholesaler's Ass'n., 37 F.3d 12, 22-23 (1st Cir. 1994.) The 7th U.S.
Circuit Court of Appeals, in dicta, has stated that a Web site can be a
place of public accommodation. (Doe v. Mutual of Omaha Ins. Co., 179 F.3d
557, 559 (7th Cir. 1999.)

Similarly, the 11th U.S. Circuit Court of Appeals held that an automated
method of selecting television show contestants was an intangible barrier
to a physical location in Rendon v. Valleycrest Productions, 294 F.3d 1279
(11th Cir. 2002).

In 2002, the United States District Court of the Northern District of
Georgia granted a preliminary injunction against the Atlanta public
transit agency in favor of several individuals who alleged violations of
the ADA, including nonaccessible information technology. (Martin v.
Metropolitan Atlanta Rapid Transit Authority, 225 F. Supp. 2d 1362 (N.D.
Ga. 2002.) However, the Martin case involved Title II of the ADA dealing
with "public agencies" as opposed to Title III, which deals with "public
accommodations."

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