Bad for Users, Bad for Business
In what might prove to be a landmark decision, a California court ruled that a Colorado company violated the rights of a blind consumer by failing to make its website accessible to the visually impaired. Given the growing number of lawsuits against businesses with websites that blind customers cannot easily access, the decision may encourage businesses to review and modify their websites by making them more user-friendly for visually impaired customers.
Edward Davis brought a lawsuit against BMI/BMB Travelware Company (doing business in retail stores as Colorado Bag’n Baggage and on the web as ColoradoBaggage.com). The lawsuit alleged that Davis is blind and that he cannot independently access a website unless the website has been designed to be read by screen reading software that vocalizes the content of the screen.
The World Wide Web Consortium (W3C) — “an international community that develops open standards to ensure the long-term growth of the Web”, has published Web Content Accessibility Guidelines for making websites accessible to people with visual impairments. The guidelines call for using invisible text as an alternative to graphics and for making pages navigable by a keyboard (not just by a mouse), among other features.
Davis’ lawsuit alleges that the baggage company’s website did not comply with the W3C standards. Davis contended that since ColoradoBaggage.com was not fully accessible to blind customers, he was denied the same access that other internet users have to obtain goods and information from the company’s website.
Davis argued that the inaccessible website violated Title III of the Americans with Disabilities Act (ADA), a federal law that prohibits stores and other “places of accommodation” from discriminating against individuals with disabilities in the “full and equal enjoyment” of the goods, services, privileges, and facilities that the business provides to the public. The ADA also requires businesses to make reasonable modifications in their policies, practices, or procedures when necessary to assure that no disabled individual is excluded from the business, denied services, or treated less favorably than other consumers because of the disability.
In addition, Davis argued that the baggage business violated California’s Unruh Civil Rights Act, which guarantees people with disabilities equal access to all business establishments. The suit contended that the website violated California law by creating barriers to its use by blind customers and that the company’s failure to remove those barriers after being notified of the problem constituted intentional discrimination.
Judgment for Davis
Davis moved the court for summary judgment. A court will enter judgment for a party without a trial if undisputed facts establish the right to legal relief. In Davis’ case, there was no dispute about the facts so the court was able to decide the lawsuit without a trial.
The court ruled that a nexus existed between the company’s retail stores and its website. The court also determined that the company’s website was not fully accessible to blind customers. Concluding that the inaccessible website violated both the ADA and the Unruh Act, the court entered an injunction preventing Colorado Bag’n Baggage from doing business via its website until the site is made accessible to blind patrons. Since the business did not argue that following the W3C standards would be unreasonably burdensome, the court ordered the business to do so.
The court also awarded Davis $4,000 in damages, as well as his attorney’s fees. The Wall Street Journal Law Blog reports that attorney’s fees will likely exceed $100,000. Whether the business plans to appeal is not yet known.
Implications for Web Businesses
Davis alleged, and the court agreed, that Colorado Bag’n Baggage operated retail stores in California, that its stores were places of public accommodation, and that the website was a service provided by, and integrated with, the retail stores. The court determined that the ADA applied for that reason. That decision was consistent with a federal court’s conclusion that Target’s website was subject to the ADA because it acted as a gateway to products and services provided at its physical locations.
Whether a web-based business that does not serve customers at a physical location is a place of public accommodation is a more difficult question. Federal courts that have considered the issue are divided. The Seventh Circuit, for example, suggested “that the owner or operator of a store, hotel, restaurant, dentist’s office, travel agency, theater, Web site, or other facility (whether in physical space or in electronic space …) that is open to the public cannot exclude disabled persons from entering the facility and, once in, from using the facility in the same way that the nondisabled do.” A federal district court judge ruled that the ADA applied to Netflix, which does not have physical locations (Netflix settled the case after the judge made that ruling). Other federal circuits have limited the term “public accommodation” to physical locations.
The Department of Justice, which establishes ADA compliance standards, has repeatedly delayed issuing regulations that would provide guidance to web-based businesses. The Department apparently wants more time to consider the standards that should be met before a website is deemed accessible. It seems reasonably clear, however, that the Department views the ADA as mandating all businesses that serve the public via the web to make their websites accessible to the blind, whether or not the businesses serve the public from a physical location.
The Supreme Court may eventually be called upon to reconcile the conflicting federal court decisions. California law, on the other hand, can only be interpreted by California courts. The Unruh Act applies to “business establishments,” which may or may not be construed to include “web only” businesses when the company does not have a physical location that serves customers. California courts might decide that the Unruh Act requires business websites to be accessible to the visually impaired even if the Supreme Court decides that the ADA does not. Given California’s population and the risk that the Unruh Act applies to any business that sells to or solicits California customers, web-based businesses might want to comply with the W3C guidelines to avoid lawsuits filed by California customers.
Until the legal issues are finally settled, it makes sense for all web-based businesses, whether or not they also operate physical locations, to make their websites compatible with readers that allow visually impaired customers access to the site. Doing so will not only expand the universe of customers the business can serve, it will help the business avoid liability if courts ultimately conclude that business websites must be accessible to visually impaired users.