Judge Rules Sites Can Be Sued Over Design

BcNexus writes "According to the Associated Press, a California judge has ruled that a lawsuit brought against the Target Corporation may proceed under the Americans with Disabilities Act. The catch here is that the suit, leveled by the National Federation of the Blind, concerns the design of Target's website. Could this set a precedent and subsequent flood of lawsuits against websites? What if another design is not tractable?" From the article: "'What this means is that any place of business that provides services, such as the opportunity to buy products on a website, is now, a place of accommodation and therefore falls under the ADA,' said Kathy Wahlbin, Mindshare's Director of User Experience and expert on accessibility. 'The good news is that being compliant is not difficult nor is it expensive. And it provides the additional benefit of making accessible web sites easier for search engines to find and prioritize.'"

This is Dangerous

[Damastus the WizLiz]

This just plain scares me. In a society where a criminal can sue the homeowner of the house he broke into and got injured AND WIN. I can only see this as ending poorly for site developers. But I will hope that someone realizes how foolish this kind of lawsuit is

Really bad.

[Toba82]

This is not a good thing, at all. How exactly do you define a 'service'? How do you define 'accessible'? The judge should have instead called for an extension of the ADA, with explicit description of what sites it applies to and what it means to be accessible.

Good.

[Virak]

Maybe this'll get all those so called 'web designers' to realize that there's more to web sites than making them look pretty.

Re:This is Dangerous

[Bing Tsher E]

I can see this as ending poorly for site developers who use Flash. But, then. . .

Re:may contain NUTS

[Anonymous Coward]

As more and more commerce, social interaction and government services move online, making sure that those people in society that are disabled are not left out is not excessive sensitivity. You might as well say that providing public transportation for the poor and sidewalks for pedestrians is excessive sensitivity because buses and sidewalks take up perfectly good space where you could be driving your SUV.

having a site be accessible is easy - provide a plain text alternative. Simple.

Designer's perspective

[SocialEngineer]

I've been making a huge push for standards compliance - and it looks like those of us who still fight for it might finally have their voices heard. I just finished up a design contract for a hospital, recently - one where their current (soon to be old) website was all but easily usable by the blind.

For those of you who think that the blind don't surf, they do; Do you think TTS readers are just so you can make your computer say naughty words? There are numerous blind users on the web.

While transitioning from crap to standards compliance is a pain in the butt to do, once you are there, it is usually smooth sailing (assuming you have an experienced designer do the site). I can't even begin to imagine what it would be like to manage some of my current web projects while using tables for layout, and whatnot.

Now, if only IE would catch up on the standards game..

Unconstitutional

[Antony-Kyre]

I would think what this judge did violates the 1st Amendment.

There's more to it

[Expertus]

This article did not have much detail, but some [com.com] reports [sfgate.com] from February when the suit was initially brought provide a bit more insight.

the suit charges that visual information is missing "alt-text," or invisible code that allows screen readers to detect and vocalize a description of an image. In addition, the site lacks accessible image maps, an impediment to jumping to different site destinations

If all Target had to do was add some alt-text to their images, it seems foolish for them to refuse to do so - which leads me to believe that there is more at play here.

I think that it is in the best interest of a business to make themselves accessible to the widest audience possible, but it seems that the litigants want to hold the nation's businesses to standards created by the TTS industry (I'm assuming they use some variant of TTS software - I know very little about software for the blind). An international standard would be ideal, but in an age where technology changes so rapidly, it will be difficult to regulate compliance with ADA laws. If we compare this to wheelchair access ramps, we have a design that has fundamentally remained unchanged - wheels going up a ramp. It would be like requiring companies to rebuild their ramps every few years to accommodate new wheelchair designs while expecting them to maintain backwards compatibility with older models.

Re:Really bad.

[SEE]

Um, no. It isn't a judge's job to advocate legislation. It's a judge's job to apply existing law to specific cases. It's exactly the judge's job to interpret 'service' and 'accessible', and to then explain how he reached those conculsions in his opinion (thus "case law" and "precedent"). That's how the Anglo-American system of law has worked for several centuries now.

Re:This is Dangerous

[himurabattousai]

Those who realize how foolish it is aren't in any position to do anything about it. This adversarial tactic does no one any good. Target gets heat if they actually point out how many blind people use their website (I'm guessing less than a small fraction of 1%). The blind people get heat when they complain about an inherently visual medium not being accessable enough. And, of course, no matter the outcome, laywers get heat for participating in this stupidity.

The reasonable tactic would have been to approach Target and offer to work with them to find a solution. Not only would it be cheaper for all sides in the short and long terms, but the positive light it would cast all parties in would bring everyone more money--more than enough to offset the costs of at least a partial site rebuild. In this case, the cheaper solution is the one that lets everyone win. Sadly, this fight is not about what's best for everyone. It's about sticking it to Target. That is how I think most people will see it.

Incidentally, the people who this is most dangerous for are the ones bringing the complaint. The opinion that people with disabilities want a free ride is not a small one, though almost always, it is wrong. Many, many people will remember this as Target being attacked, not as a last resort, but as an immediate and unwarranted response to a problem that is virtually non-existent. It will be incredibly difficult for this to be spun positively, and I fully expect that this particular disabilities advocacy group will see much smaller donations as a direct result of this lawsuit. Unfortunately, this train of thought doesn't even stop in the minds of the people responsible for the lawsuit. They have no idea how much damage they are really doing to their cause.

Re:Really bad.

[DragonWriter]

A judge's job is to interpret the laws that exist, not to "call for" new laws. And, here, the judge only allowed only the parts of the claim relating to information concerning Target's physical stores to go forward, and threw out the rest of the claims. So it seems that the judge feels that the applicable laws (both the ADA and the state law at issue) is already clear: inasmuch as the features of a website pertain to the use of a physical facility, they may be within the coverage of those laws.

Re:This is Dangerous

[drsquare]

As a disabled person, I don't find this ruling foolish at all.

Re:This is Dangerous

[Prof.Phreak]

I can only see this as ending poorly for site developers.

You mean they'll have to provide a simple text only alternative to the site? Uh, oh, that's like -so- bad for everyone involved.

Re:Bad in every way

[servognome]

But nobody has a RIGHT to do business with any particular company

Should people have a RIGHT to minimum wage or decent working conditions? Workers can always choose to work for a different company, or not work at all
Should people have a RIGHT to not have their medical records released to everybody? We can always choose to not use a health care provider that doesn't protect privacy.

Protection laws such as minimum wage or ADA were enacted to address the gaps between social responsibility and the free market.

They don't bother to explain why anyone has a "right" to force me (as a business owner) to modify my business to suit THEIR needs and wants. No such right exists, but nobody has told the federal government that.

Just look at the Interstate Commerce clause in the Constitution.

Re:Same in the U.K.

[David Gerard]

"Not to mention that without any legally-defined standards"

Which, of course, exist.

Re:This is Dangerous

[flooey]

The reasonable tactic would have been to approach Target and offer to work with them to find a solution. Not only would it be cheaper for all sides in the short and long terms, but the positive light it would cast all parties in would bring everyone more money--more than enough to offset the costs of at least a partial site rebuild. In this case, the cheaper solution is the one that lets everyone win. Sadly, this fight is not about what's best for everyone. It's about sticking it to Target. That is how I think most people will see it.

I think you have a somewhat optimistic view of how a company like Target would respond to such a request. I think a more likely response would be that they would say that they're definitely interested in building a more accessible site, that they'll get to it when time allows, a short flurry of memos would be distributed among the website people stating such, and then it would be forgotten about by the time the next redesign came around and nothing would end up happening.

Doing it that way would definitely be cheaper for Target, and probably cheaper for the disabled, but runs the serious risk of resulting in absolutely no change at all. In truth, there's nothing in the story that indicates what kind of contact they may have had with Target prior to filing suit (there's really nothing much in the story at all), so they may well have attempted to pursue that option but ended up having to file suit anyway.

Re:This is Dangerous

[Anonymous Coward]

The blind people get heat when they complain about an inherently visual medium not being accessable enough.

0 and 1 are not inherently visual. Text is not inherently visual. The web is only inherently visible if clueless "designers" choose to make it so. It may have visual elements, but there are very few reasons why a site cannot be inherently accessible. Shame on you.

Re:Bad in every way

[servognome]

However, when it comes to private enterprise, I believe it should be up to the business whether or not they want to provideo services to those with disabilities, especially when it comes at an increased cost.

The requirement is reasonable accomodation, businesses can apply for a compliance waiver if they feel if the requirements are impractical.

Should world of telescopes be required to ensure their services are open to the blind?

Yes, a blind person can hook the telescope up to a computer or figure out some way to make the telescope useful.

Should the running equipment store have to ensure that their store is wheelchair accessible?

Yes, there is running equipment that would be useful for somebody in a wheelchair (weights, sweats). Also, the disabled person may intend to purchase items for somebody else

Should the music store have to contain written lyrics of all their albums for sale?

No, the ADA only addresses accessability, not require businesses sell products for the disabled

I think that businesses should do what they can for those with disabilities, however, they shouldn't be forced into it.

The problem is that if it isn't required, it won't be done.

Re:This is Dangerous

[NMerriam]

they complain about an inherently visual medium not being accessable enough

How is the web an inherently visual medium? It's based entirely on textual data, with support for graphics bolted on to make it prettier. The important things at the Target website are lists of store locations, operating hours, phone numbers, and that's what they were sued over. You don't need a picture to tell someone the address of your store. You don't need a picture to tell someone which brands of irons you carry and how much each model costs. You *should* add pictures of items to increase sales, since people generally like to see what they're buying, but blind people accept that limitation.

This is, quite frankly, a perfectly sensible ruling and something web developers have been warning companies about for nearly a decade. This is not some crazy fringe group out to cause trouble, this is a problem we've all known about for years and years but too many people ignored because it was cheaper or easier to cross your fingers than follow sound advice (although ironically enough, a well-designed (and therefore accessible) site will be cheaper and easier in the long run because of easier maintenance and adaptability).

It is good business to allow the disabled

[Anonymous Coward]

...to purchase your products, but it's also good service to have plenty of friendly cashiers at the counter. Should the government mandate that as well? When government tells private business how to operate, you can guarantee that businesses will do the minimum necessary to comply. Sometimes this is necessary with regards to fair trade and product safety, but it is *not* necessary in this case.

Re:This is Dangerous

[Jeff DeMaagd]

That's not the same. That is ridiculous. Web pages may seem like an inherently visual medium, but a lot of the actual "meat" of most web sites is text. That text can be rendered to speech or to an electromechanical braille device. It can be a little cumbersome but it is the way the blind get around web sites.

we no longer have the right to own property

[Dmack_901]

That's non-discrimination laws for you. It doesn't matter that you will take the loss of potential customers if they can't find their way around you site. It doesn't matter if you don't want to sell to whites/blacks. It doesn't matter if you can't afford to widen all your doorways and build ramps etc. The fact is, we no longer have the right to own property in this nation. We can't even do buisness in "residental districts". The more you look around, the more you realise, we are extreme-socialists, and are losing our rights daily.

Today's Karma Burn

[caudron]

I see a lot of comments lambasting the lawsuit, but I have to say I don't see the problem.

Making a site 508 compliant [section508.gov] is not really all that hard and it essentially consists of making sure your site validates as XHTML 1.0 (preferably 1.0 Strict) or even better, XHTML 1.1. Do that and you are about 90% of the way there. The rest consists of actually knowing html and using it correctly. Learn to use labels, fieldsets, and other html elements that have been largely ignored, despite being quite useful. Actually use the alt tags for images of consequence. In other words, if you've designed a site that complies with web standards, you have little to worry about with this lawsuit. If you haven't, then now you know why we have and push standards. Consider it a lesson learned and move forward a wiser developer.

The only downside to writing a site to be 508 compliant is that AJAX must be used carefully. Screen readers still don't detect client-side content changes well, so client-side dynamic content is slightly more limited, requiring a few more postbacks that you would normally use. But if you know what you are doing, those sorts of "intrusions" to your normal programming work are almost inconsequential. One caveat: Don't trust that Visual Studio 2005 and IIS will give you compliant code, even if they say they will. They won't.

You need to know a little something about real web development but the end your site will be better, cleaner, and more easily maintainable. I've done it. It's ain't that hard.

Tom Caudron
http://tom.digitalelite.com/ [digitalelite.com]

Re:Bad in every way

[servognome]

Of course not. The idea that people should have a right to a wage greater than the value of their labour is one the most absurd theories out there.

Blind allegience to free markets to the detriment of people is absurd. An economic system is a tool for the use of resources in society. Capitalism maximizes efficient use of resources, but since labor is a resource, the maximization can result in negative impact on people.
For the most part capitalism works to serve society, there are some cases where the system fails and requires regulation (eg OSHA, minimum wage, ADA). Unfortunately the government has gone overboard and overregulates to the point where it's no longer fixing gaps, but rather, is trying to directly manage.

Re:Bad in every way

[anothy]

i'm certainly not going to argue that the commerce clause isn't [mis|over]-used, but you don't really think any of that started with FDR, do you? at the absolute latest, Lincoln was pretty clearly ignoring the constitutional balance between state and federal rights for his entire term, and it all just fell apart during and shortly after reconstruction. while the issue of slavery tends to overshadow what the war was really about in nearly every debate (and not without reason), it's entirely probably that, as far as the constitution's concerned, the wrong side won that one.

Re:This is Dangerous

[arth1]

No one has a right to shop at any store. Period. That is completely asinine. If you don't like the fact that I chose to make you climb a wall, then vote with your feet/money and shop elsewhere. If I cut out enough people, I will either change or go out of business. This applies to ANY limit place on who may shop at a store. If you are stupid enough to limit who can buy your products, then you have to live with it. But government has NO business coming in and telling you to change it. Period.

So, according to you, it's perfectly OK if stores put up "NO BLACKS" signs again?
How about a gas station refusing to sell gas to handicapped people who can't operate the pump themselves? They can always push their car with their wheelchair over to the next gas station...
Or how about web sites like /. refusing bigots access?

Re:This is Dangerous

[ctr2sprt]

Specifically, what was it exactly that made Target's website non-compliant?

Check out Target's site. On the first screen, there are four words of text: "Sign In" and "New Guest." The stuff that looks like text really isn't, it's been saved as GIFs. There's also a big ol' Flash thing there. The second screen has actual text: the bulleted items are, even though the menu on the left isn't. Also the navigation panel at the bottom uses text. You can verify this by trying to select the "text." (For links, just make sure to move the pointer over a different link before you let go of the mouse button.) If you can select individual letters, it's actual text.

I'm definitely impressed by Target's committment to stupidity. Most people wouldn't bother taking the extra time to turn plain, unenhanced Tahoma text into a bunch of 1.5KB GIFs. I mean, it makes the site 500 times bigger, it makes the site unusable by people with vision problems, it takes probably 10 times longer since you have to do it in Photoshop, and I bet they had to spend hours fiddling with the code to make everything line up properly. Most people would bail when they realized precisely how stupid an idea this was, but not Target! When they were done, they just wanted to know what stupid thing they could do next! "Hey guys, let's challenge this lawsuit that we patently have no chance whatsoever of winning! We're still going to lose, but now it'll cost us hundreds of thousands of dollars in legal fees and a bunch of bad publicity!"

Re:This is Dangerous

[NMerriam]

*shrug*, you're entitled to your extreme libertarian opinion. Most of modern civilization disagrees with you, they believe businesses benefit from some government policies that protect their private interests, and in exchange they're expected to live up to other policies that serve the public interest.

Or, to put it in your own words, No one has a right to start a store. Period. If you don't like the fact that we chose to make you follow requirements, then vote with your feet/money and start a store elsewhere. If we cut out enough business, we will either change the laws or go bankrupt and be conquered. This applies to ANY limit place on who may open a store. If we are stupid enough to limit who can start a store, then we have to live with it. But stores have NO business coming in and telling us to change it. Period.

Re:This is Dangerous

[zoeblade]

They'll have to provide a simple text only alternative to the site

Alternative? If the site's made well using web standards, all the browser needs to do is ignore the stylesheet (like Firefox has the option to do, and Lynx has to do), and you can see the site without any snazzy design getting in the way of the actual content. You certainly don't need to make two copies of every page.

Re:This is Dangerous

[urbanradar]

Of course it's sensible to have a website that is accessible by the visually impaired - but should you be forced to do so by law? That bit doesn't make much sense at all to me. At the end of the day, it's *your* website, and it's *your* decision to whom you want to make it easily accessible. If you decide to leave out potential customers who are blind - your own fault.

I mean, if that's a perfectly sensible ruling, why don't we go a step further and create a law for all advertising materials, catalogues, flyers, posters, to be also readable in braille? And why don't we require everyone to subtitle their TV ads with respect to the deaf?

Then, would this only concern Target's website? Or only the websites of big businesses? Or only business websites? Or every single website out there? What would the criteria be?

Don't get me wrong, I very much approve of making content accessible to the visually (or similarly) impaired. But I don't think it's the governments job to *force* you to do so.

Re:This is Dangerous

[lysergic.acid]

The internet isn't a right.

What the hell does that mean? Gee, college isn't a right either, does that mean it's ok for colleges to discriminate against people based on their being disabled? or how about the color of their skin or their sex? Hotels aren't a right, so wheelchair ramps shouldn't be required either I guess...

Legal protection against discrimination for the disabled are just as important as those for minority ethnic groups and women. Come out of the 50's and start living in the 21st century.

Re:This is Dangerous

[niiler]

I think the issue is not sympathy. I think the issue is that it is entirely more complex than you make it out to be and that there is now a legal slippery slope.

To ensure that my pages are accessible to all, I really should

• 1) Attach alternate tags to all of my graphics so that screen readers can do their job. [CHECK.. this is easy]
• 1a) Not use any informational graphics unless I can summarize their content within a short sentence [Not so easy. I see the NYSE being sued almost immediately]
• 2) Not use certain non-linear designs as this will foil screen readers or lead to confusion [This seems like something that is not definable, but that the lawyers will know when they see it. Also, when does poor organization become a legal liability?]
• 3) Be certain to use an alternate design for the still non-compliant IE7 (and every other non-compliant browser out there). [So is the browser maker responsible, or is the web master responsible for making certain that they serve pages that every browser ever created can render properly? Oh yeah, and kiss the progress made in CSS over the last 6-7 years goodbye because it still isn't implemented uniformly or even at all in every browser.]
• 4) Be certain to use an alternate design for mobile devices (after all, what if you are computer-deprived and only have a cell phone?) [Isn't this an entirely new subset of HTML that needs to be learned? I know, you learn what you need to use, but so much for this being drop dead easy.]
• 5) Be certain not to include any element in my site that all people, no matter what their disability is, can use. [Uh...just how many disabilities are there and what precisely are their limitations? This last portion relates to the legal can of worms opened by the ruling.]
• 6) Be certain not to use certain color combinations as these will be illegible to the color-blind. [High contrast isn't enough in this case.]
• 7) Er...uh... (*pop*)

Heck, I'm just going to serve text files with hyperlinks from now on because that way I can't be sued. I mean, why take chances?