Internet case against target.com might impact charitable Web sites.

A federal district court judge is allowing to go forward a suit brought by the National Federation of the Blind (NFB) against Target Corp., alleging that the retailer's Web site is not accessible to blind consumers.

Should the court side with NFB, it would set a legal precedent that to impede such access would be a violation of federal and state laws prohibiting discrimination against the disabled. And while this case speaks solely to Target, it opens up to a successful lawsuit any company or charity that fails to take heed and make their Web site accessible.

Federal Judge Marilyn Hall Patel, sitting in the Northern District of California, last month denied Target's motion to dismiss the allegations that the inaccessibility of its Web site, target.com, "impedes the full and equal enjoyment of goods and services offered in Target stores," according to court documents. The named plaintiffs in the suit are NFB, NFB of California, and blind University of California--Berkeley student Bruce Sexton.

According to court documents, Patel held that a Web site such as target.com, if found to be inaccessible, is in violation of the federal Americans with Disabilities Act (ADA). Accordingly, a violation of the ADA is a violation of state statutes, the California Unruh Civil Rights Act and the California Disabled Persons Act.

The ADA was signed into law in 1990, at a time when the words "Internet" and "Web site" were obscure and did not warrant inclusion in the federal statute. Today, the Internet claims more than one billion users worldwide.

According to Mazen M. Basrawi, attorney with nonprofit law firm Disability Rights Advocates, "The lawsuit will only apply to Target, but the rulings that may come down will affect a broad swath of companies (nationally)." The Berkeley-based firm, along with civil rights law firms Brown, Goldstein & Levy in Baltimore, and San Francisco-based Schneider & Wallace, represent the plaintiffs in the suit.

Basrawi said he's noticed a proactive response by private corporations prior to the lawsuit being filed. "Several companies are already making an effort to make their Web sites accessible to the blind," said Basrawi, who said the court's decision to proceed with the case was the first major hurdle for NFB.

That hurdle, according to Seth Perlman, senior partner at Perlman and Perlman in New York City, will present significant problems for charities, "which are in the least likely position to be able to afford the kinds of changes necessary to comply with the expanded definition of the ADA." Added Perlman, "no question, that decision alone, it will have an impact on nonprofit organizations that are running online Web stores."

John Harrion, counsel for the United Spinal Association, said the court's decision very clearly signals that Web sites need to be accessible to people with disabilities. "Case law in this country is all based on precedents," said Harrion."Any lawyer who's worth their weight is going to point to this case and say,

'Look, the same set of facts existed here. Your Web site is inaccessible, and you're going to be obligated to change that according to this rule.'" Neither attorney is affiliated with the lawsuit.

The plaintiffs are now faced with providing discovery that the Web site, target.com, is in fact not compliant with screen reader software, which vocalizes text and makes online navigation feasible for the blind.

NFB, an advocacy group which files several lawsuits annually related to the discrimination of the blind, first notified Target during 2005 "of the unlawful accessibility barriers on its Web site" according to Basrawi.

NFB asked the retailer to add to its Web design alternative text, an invisible code embedded beneath graphic images that enables screen reader software to detect and vocalize the "alt-text" and describe the content of the Web page. The function would enable blind users to navigate the site with a keyboard instead of a mouse, making navigation less of a guessing game.

After eight months of negotiations with Target hit a standstill, NFB on February 7 filed a class action suit in California's Alameda Superior Court. On March 9, Target removed the case to federal court under Patel, filing a motion to dismiss the claims.

"We don't understand why they would be unwilling to do this when it's not difficult," said John G. Pard, director of public affairs for NFB. "It just makes good business sense". Target did not return calls to its Minneapolis headquarters.

The stance taken by the Goodwill Industries of Orange County is that accessibility is paramount, regardless of whether or not the law mandates it to be so. This includes access to the Internet. "To us, it's not so much reacting to a lawsuit as it is that everyday we really strive to provide accessibility in all ways that we can," said Joan Dornbach, vice president of marketing at the Santa Ana, Calif.-based affiliate of Goodwill Industries International. Of federally mandated compliance issues, said Dornbach, "We try to stay in advance of them, as opposed to waiting for a mandate to come our way."

The Santa Ana chapter runs shopgoodwill.com, the organization's auction site. According to Dornbach, the site is undergoing a redesign to ensure that it complies with the latest technologies, including screen reader software. "Call it a facelift, if you will, and we're rewriting the language at the same time so that we can make it as accessible as we have with our organizational Web site," said Dornbach. She said goodwill.org, the site of Goodwill Industries International, recently underwent its own redesign "so that it meets and exceeds accessibility standards."

Meeting Internet accessibility standards in terms of the disabled takes on increased importance for all organizations with the possibility of a lawsuit now a real threat. Judge Patel's basis for her decision to allow the suit to proceed--that although Title III of the ADA doesn't specifically talk about the Internet, the statute applies to the services of a place of public accommodation--makes this so.

Title III of the ADA states: "No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place or public accommodation by any person who owns, leases (or leases to) or operates a place of public accommodation."

According to Basrawi, the position of the plaintiffs is that the Internet is included in the broad language of Title III."This is how the law is developed."

Basrawi cited a 2002 case in which the plaintiff, another disability rights nonprofit, failed to show a violation of Title III of the ADA.

According to court documents, the Florida-based Access Now filed suit against Southwest Airlines, whose Web site southwest.com, in particular its "virtual" ticket counter component, was not compliant with screen reader software. Until then, Title III had only been applied to bricks and mortar facilities.

According to court documents, Access Now failed to state a claim under the ADA since the nonprofit alleged no physical place of public accommodation--"virtual" ticket counters are not physical places. Additionally, the non-profit admitted that a blind person could still buy tickets online, but it was more difficult to do so without the screen reader.

In the case of target.com, a non-mouse user navigating the site cannot purchase online, cannot create or sign in to Target's online pharmacy, and cannot find out what coupons found exclusively on the site they can print out to take to the physical store, according to reports. A key difference between the Access Now case and NFB v. Target, "we did not allege that the (Target) Web site was directly covered under the ADA," said Basrawi."We alleged that it's a service of Target's physical stores."