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.'"

Not expensive? By what standard?

Smaller businesses can take years to squeeze the cost of a total site re-design out of their profits. A large, sprawling site that's been growing for years may not lend itself to anything other than a major piece of work. That's not to say the business shouldn't do it for other reasons (like SEO), but if they want to alienate some customers because for them, that's less expensive than a big IT project, that should be their call. Not a lawyers. I can't believe that any business not in the mood to do this doesn't have competition that is.

Of course, I smell some consulting blood in the water, here. On the other hand, one of my customers sells eyewear for sports. Somehow I don't think that redesigning their site for the blind is going to be high on their list. The irony is, they can still get sued anyway. Brilliant.

No kidding

For example my parents run a quit shop, not in the US so this doesn't apply, however it gets me thinking. They have a large amount of fabric online you can buy. It's just pictures and sku numbers. There's not any text descriptions. Why? Well that takes time to write, time they don't have. Their web person doesn't even keep up with the load of things to be done as it is, much less have the time to write up fabric descriptions.

So to say it "wouldn't be expensive" to do this is BS. They'd have to hire someone. That's expensive, especially considering they aren't making a profit right now. It also wouldn't be worth it, there are a whole lot of blind quilters since it is a visual medium. There's nothing stopping a blind person from doing it, of course, but it's hard to appreciate your work if you can't see it.

So ya, I'm sure the expense is minimal for large companies, but you've got to think about the small businesses too. When your entire web team is one person, and your entire staff is like 6 people, hiring another person IS expensive, really expensive.

Re:

So ya, I'm sure the expense is minimal for large companies, but you've got to think about the small businesses too.

Something that is frequently unknown whever laws applying to businesses are discussed is that the vast majority of regulations do not apply t

Re:Not expensive? By what standard?

Smaller businesses can take years to squeeze the cost of a total site re-design out of their profits.

Well, no problem there, then, because website accessibility issues have been discussed and understood in professional circles since the late 1990s. That's lots of time. The Web Accessibility Initiative [w3.org], for example, is driven by the same organisation that defines HTML and XML. They've been promoting accessibility publicly since about 1998. So someone could hardly call themselves a web professional and not know about this issue in detail.

Unless you've been sucked in by some fly-by-night operator who thinks that FrontPage and an undergrad arts course are all that's needed to create the public face of your business, you're already good to go. Because you know that standards compliance saves you money in the long run, and that the most common blind person to visit your site is a web crawler, meaning that accessbility and search engine ranking can be directly correlated.

Yep, as long as you diluted the commercial, proprietary snake-oil with just a few dollops of common sense, ensuring accessiblity is a simple matter of picking up the WAI checklist and having an intern spend a few days verifying the few minor problems that somehow leaked into production.

So what was your objection, again?

Really bad.

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.

Re:Really bad.

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:

"How do you define 'accessible'?"

I'd point you to section508.gov [section508.gov], but ... it's inaccessible (i.e. "Firefox can't establish a connection to the server at www.section508.gov"). Granted, Section 508 only legally applies to government agencies, but I would im

Re:

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

Accessibility

I'm considering adding braille to my website and building ramps between pages for those in wheelchairs.

Don't bother reading the article

This is one time where I would say that reading the article is a waste of time. In fact, the article is actually an advertisement for this Minshare outfit. There are eight paragraphs in the article and five of them are about Mindshare and nothing else. Can we please find better material for the front page of slashdot?

Good.

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:

I was once a graphic design major, but I got fed up with the attitude of "designers" and relegated it to a minor instead (I had enough credits at that point).

My design background, which was colored by engineering, had emphasized working within the boundari

Same in the U.K.

It's the same situation in the U.K. The Disability Discrimination Act specifies that any place of business must be accessible to people with disabilities (including web-sites).

I see the legislation as a "good thing", the internet is the great leveller, many people who otherwise would find it hard to make purchases or converse in real life find fewer barriers.

It goes further than just visually impaired visitors however, you have to take into account things like colour-blindness, essential tremor (so big chunky web 2.0 buttons are fine!).

All of our sites and web apps (including admin backends) have been fully DDA compliant for several years now. Being compliant makes business sense, it doesn't cost much more to build it in from the start and then you increase your potential client base - plus you get a warm fuzzy feeling when you know you're not preventing people from accessing your services.

Re:

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

Which, of course, exist.

More information

Yahoo Finance News article [yahoo.com] has detailed information on the ruling.

Designer's perspective

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..

One crucial point not addressed by the ruling

Can you sue over designs that are so obnoxious they cause you to go blind?

Re:

Yes. But no one has tracked the operators of goatse.cx down so you are out of luck.

Does not establish a precedent ...

Just a few years ago, a federal judge ruled [zdnet.com] that the ADA only applies to physical spaces. From the article:

In the first case of its kind, U.S. District Judge Patricia Seitz said the Americans with Disabilities Act (ADA) applies only to physical spaces, such as restaurants and movie theaters, and not to the Internet.

"To expand the ADA to cover 'virtual' spaces would be to create new rights without well-defined standards," Seitz wrote in a 12-page opinion dismissing the case. "The plain and unambiguous language of the statute and relevant regulations does not include Internet Web sites."

Since you now have a couple of federal judges in different districts disagreeing with each other, the Supreme Court may ultimately decide this one.

Solution: M$ Word Intraweb.

Dateline, Nighmare in Redmond: Microsoft Declares Victory Over World Wide Web.

Putting their best spin on recent web news, Microsoft spokesvole Andy Nonymous told reporters gathered at a press conference about M$'s radical new Interweb.

"For years we've been telling the free software terrorists that they were bad for business and their work was hurting disabled people and killing puppies, this drives the point home."

"We stood silent as Sendmail replaced the far more disable friendly US Post Office, but formulated a plan." At this he cackled like a fiend. "We made M$ Word the default editor for email, though most people rejected this. It really hurt us to see the demise of 3m word attachments as a means of conveying 1k of text."

"As Apache on Linux [netcraft.com] took over the world wide web, we were stunned and shaken that people who wanted to stay in business avoided our IIS unless we paid them to use it."

"It was in Mass. that we finally realized that our email strategy right all along. M$ Word is the only blind free format in existence and we are now pressing for it's use as a standard for all interweb pages! This is indeed the cheap and easy solution the good people at Mindcraft are talking about. Victory at last."

A stunned silence settled on the conference. One or two hands came up but and Nonymous nodded off stage.

A huge, sweaty, bald man with a chair then danced onto the stage carrying a $2,000, 75lb office chair raised over his head. "Any questions?" he asked through a truly demented grin [google.com]. And there were none. He had fucking killed them.

Wrong. This isn't a decision, just preliminaries.

This wasn't a decision that websites have to be "accessable". The judge just refused to dismiss the suit in the preliminary stages. The judge also refused to compel Target to make the site "accessable" during the litigation. So this just means that there's enough of a question to proceed to trial. It's not a "decision". Computerworld [computerworld.com] has a better story on this.

Existing racket

This is an existing racket which has just been ported to the web.

http://www.city-journal.org/html/14_1_the_ada_shak edown.html [city-journal.org]
http://www.theconservativevoice.com/articles/artic le.html?storyid=5543 [theconservativevoice.com]
http://blog.mises.org/archives/001453.asp [mises.org]

Today's Karma Burn

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:Flash

That's the one good thing that can come out of this, I guess.

Re:Flash

Bye bye roughly 90% of flash sites.

I think I can sum up the views of many by saying, "YAY!"

Re:

Forget flash sites, have you ever tried implementing a Captcha system that was usable by the blind?

The good news is that being compliant is not difficult nor is it expensive.

Right.

Deaf people use TTY

Also, the National Association of the Mute is suing AT&T because telephones do not adequately provide for the communication needs of the non-speaking.

Your analogy falls apart. Deaf people can tunnel text over a voice channel and have been able to do

Re:

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

Re:This is Dangerous

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:

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

Re:This is Dangerous

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

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

They did. Target refused to make any reasonable effort to make their site accessible. [com.com]

"The NFB wrote to Target in May, asking it to make the site more accessible, according to the plaintiffs. Negotiations broke down in January, which led to the filing of the lawsuit, the organization said."

I know that bashing lawyers is instinctual for some people, but at least think first, OK?

Re:This is Dangerous

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).

Re:This is Dangerous

It's cheaper, easier, and more efficient to design the site in the first place so that it falls back to an accessible view in a text-based web browser, screen reader, or braille terminal. You also get a lot more choice in design via CSS with your semantic XHTML (although you might need to throw in a few div's to prevent it from looking like complete ass in IE, but that could also be done via DOM manipulation, so whatever).

Re:This is Dangerous

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

*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:

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 cu

Re:

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

Re:

Your assumption that a website is visual, is shortsighted.

Read this comment [slashdot.org]. The author is right on the money.

lifetime appointment judges

This is an entirely different topic, though I totally agree with you.

Re:This is Dangerous

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:

This [com.com] has more information. "Sexton, who attends the University of California, Berkeley, says that while he can search the site for specific products, he's unable to associate prices with those goods." "If he did get to the checkout point, he would face a

Re:This is Dangerous

What scares *me* is knee-jerk reactions like yours. Do you realize that the ADA limits lawsuits so that the owner has to make improvements, but the plaintif can't get damages? All the lawsuit is is a way to force property owners to comply with the law.

And in this case it's working exact like it was designed.

And any web designer who didn't do it the right way has only themselves to blame, because the ADA was passed in 1990.

Re:Is this the end?

Time to patent a Braile monitor.

Braile displays have been available for years now. In fact, the CSS 2 spec allows you to write one stylesheet targetting, say, visual displays, and other for braile.

Re:

As one of these "defective" people, I've often wondered about this myself. The end result, is that much of our survival is attributed to the same religious nutjobs that are trying to push creationism over natural selection in our schools. All human life is

Re:Why

The requirement will be that all websites be renderable by a reader, if Target loses the suit (all that has happened so far is that a Target motion to dismiss the case was not granted [computerworld.com]). The judge also denied a preliminary injunction to require Target to make their website accessible immediately.
This is not trivial. There are programs that will read web pages and then pump them out through a voice synthesizer. The trouble is that the reader programs can't understand all HTML. I've forgotten the details of what fails, but I remember deciding I never wanted to work on a 508-compliant web site. 508 is a separate set of accessibility regulations for government websites [section508.gov]. Information can't be just graphic, for example. On one hand, this is essentially adding another type of browser. But it is more complicated than ms vs. netscape, because you have to have a version of each page that doesn't use graphics.

Re:

They don't HAVE to sell their products to blind people if they don't want to...

Actually, in the United States, they do have to even if they don't want to, because Congress and the first President Bush enacted a law to that effect.

Re:Bad in every way

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:

Ah, yes. The "commerce clause." The clause that magically allows the federal government to ignore all of the other restrictions placed on it by the Constitution.

And, no, the alleged rights you mentioned don't exist, either. They're figments of the socialis

Re:

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, bus

Re:

I wish I had some mod points to give you.
See also:
http://ron.dotson.net/diary/ussa.htm [dotson.net]