TechLaw

Executives at retailers who also operate Web sites should stop whatever they are doing right now and read Judge Marilyn Hall Patel's latest opinion in the National Federation of the Blind v. Target Corp., No. 06-1802 (N.D. Cal. Oct. 2, 2007). Judge Patel -- who mentioned at several points in the opinion that she was not evaluating the merits of the plaintiffs' Americans With Disabilities Act claims -- certified classes consisting of blind persons who:

    (1) were deterred from shopping at Target because of problems they had navigating the Target Web site ("The layout of the website was extremely confusing and large portions of information appeared to be missing," one declarant stated.)

    (2) experienced increased time and expense while on Target's premises because they were unable to "pre-shop" on the Web site (One declarant stated that she was required to ask a Target clerk read a gift registry aloud because she had been unable to read it on the Web site).

These declarants, Judge Patel said, meet the court's previously announced formulation of an actionable ADA claim: an inaccessible Web site that impedes full and equal enjoyment of the goods and services offered in Target's physical stores.

Though the ADA contains a "nexus" requirement -- i.e., that the Web site accessibility faults impair a disabled person's use of the store's physical premises -- no such nexus is required under California's Unruh Civil Rights Act and the Disabled Persons Act, Judge Patel also ruled. Plaintiffs still have some hurdles to overcome on these state-law claims, however. The Unruh Act requires a showing of intent to discriminate, and the DPA claim requires the court to interpret, for the first time, the meaning of "full and equal access" in the context of a Web site design.

The bar set by Judge Patel is a low one. All retail shoppers benefit from reviewing the availability of merchandise online prior to visiting the retail store. If Target's online operation is ultimately found to violate the Americans With Disabilities Act, I am sure that most, of not all, large retailers suffer the same problem. The state-law claims will apply to any Web site doing business in California.