Posted by: bridget | 15 October 2007

The Blind Leading the Legally Insane

Don’t ya love it when your blog-friends assign you work?

A federal court in California ruled that the Americans with Disabilities Act (ADA) and two corresponding California statutes, allow for classes of blind people to sue web site owners, like Target.com, that do not provide full and equal access to the blind.  Judge Patel had previously ruled that the ADA permits blind persons to sue web site owners for unequal access.

The ADA applies to employment; state and local government activities; public transportation; public accommodations; telephone and television access; telecommunications; housing; and air travel.  The National Federation of the Blind argued, and Judge Patel accepted, that Target.com is a “public accommodation” and the fact that the web site discriminates against the blind is actionable under the ADA.  

The ADA says that places of public accommodation must be accessible to the disabled. It lists examples, but websites are not mentioned. Consequently the NFB’s original claim under the ADA was a narrow one: it identifies Target.com not as a place of public accommodation but as a service and benefit offered by Target stores in California. It is the physical stores that are places of public accommodation. 

So while the NFB argues that a blind person’s inability to place an order at Target.com is a breach of the state laws, its claim under the ADA is unusual. It says that the site’s store locator, which helps shoppers to find a local store and opening hours, is not accessible to blind users.

The definition of “public accommodation” is below; obviously, web sites are not zoos, nurseries, or the like.  Problematically for the NFB (well, “problematically,” if this case were not brought in the Ninth Circuit), the ADA covers electronic services (telephones, television, and telecommunications).  It excludes web sites from that enumerated, on-point list, which suggests that web sites (and other electronic media) are not “services” for the purposes of the ADA.   Furthermore, the “services” requirement only applies to public entities, which are different from public accommodations (here).

Judge Patel refused to state that the claim was mooted on the grounds that Target had updated its website.  She reasoned that, as it was constantly adding new pages, the issue could not be mooted.  That is an interesting take on the mootness doctrine.  Presumably, the same theory could be used to prevent a store from ever exiting litigation and being free from a court’s oversight.

On a different level, the idea of corresponding services for the fully-blind with websites is absurd.  Telecommunications is provided in a consolidated manner: for example, AT&T operates phone booths (user end) and the service itself.  It can therefore make a touch-capable phone booth that is compatible with phone services.  The website equivalent would be for Target.com to also manufacture computer monitors.  Furthermore, website designers cannot communicate in Braille, have voice-overs that explain the layout of the site (“click on the third to left-hand button on the second row of navigation buttons for store locator; click on the fourth to left-hand button for contact listings”), or replace pictures with adequate descriptions. 

——–

In other fun law news, another California federal district court judge enjoined the U.S. government from implementing rules that would crack down on illegal immigrant workers.  Under the law, the Department of Homeland Security will send out letters to employers whose employees show a mismatch between name and social security number.  The employer has 90 days to either resolve the discrepancy or terminate the employee.

The plaintiffs (the ACLU, AFL-CIO, and the US Chamber of Commerce) claim that this would lead to discrimination in the workplace and would expose businesses to additional expenses.  Both of these claims are entirely absurd.  

While this pachyderm is not in favour of regulations that slowly bleed businesses to death, she cannot believe that a requirement to ensure that employees are who they claim to be is anything but a basic business practise.  The DHS does most of the work for the employers by alerting them to the mismatch.   Employers are mandated by law to obtain certain documents (listed here) before hiring workers.  Surely, it cannot be an onerous burden for them to obtain those documents while filling out tax forms on the first day of work or upon receipt of a DHS mismatch letter.

As for discrimination: presumably, the ACLU is worried about discrimination against Mexicans.  Employers, under the law, are not penalised for hiring illegals, so long as they are discharged within 90 days of receipt of a mismatch letter.  There is no discriminatory nature to the firings, either: they would all be predicated upon a mismatch between data provided by the employee and that shown in the government databases, not racial or ethnic classifications. 

Obviously, the law would disproportionately affect the groups which are disproportionately illegal, but excessive wrongdoing by members of one group can hardly be a reason to give extra protection to the group as a whole.  According to the Pew Hispanic Center, there are at least six million undocumented Mexican workers in the United States.  Approximately 2/3ds of Hispanics in are from Mexico; there are 28  million Mexicans living in the United States.  Therefore, roughly 23% of Mexicans are illegals and not permitted to work.  The trigger for employment action is not being Mexican, however, but not having appropriate paperwork.

In some sense, these requirements may harm the poor, the elderly, and the disabled, who do not have access to such documents.  Nevertheless, the proper solution is not to ensure that those documents are never, ever needed (previously blogged, here): it is to help those people obtain proper identification, social security numbers, and the like.

—–

Definition of Public AccommodationPlace of public accommodation means a facility, operated by a private entity, whose operations affect commerce and fall within at least one of the following categories —(1) An inn, hotel, motel, or other place of lodging, except for an establishment located within a building that contains not more than five rooms for rent or hire and that is actually occupied by the proprietor of the establishment as the residence of the proprietor;(2) A restaurant, bar, or other establishment serving food or drink;(3) A motion picture house, theater, concert hall, stadium, or other place of exhibition or entertainment; (4) An auditorium, convention center, lecture hall, or other place of public gathering;(5) A bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment;(6) A laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment;(7) A terminal, depot, or other station used for specified public transportation;(8) A museum, library, gallery, or other place of public display or collection;(9) A park, zoo, amusement park, or other place of recreation;(10) A nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education;(11) A day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establishment; and(12) A gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation.

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Responses

  1. Thanks for posting that. Now I’m off to find you some more work. :-)

  2. How does TotalT get away with that? I’m afraid he is going to assign me to mow his yard someday.

    I’m sympathetic to blind people, of course, but lawsuits like that are foolish. They are not only unreasonable but could cause people to be less sympathetic.

    On a related note, I was driving behind a van today that said, “Blind person driving.” When I pulled up alongside him I saw that he installs blinds for a living.

  3. How does TotalT get away with that? I’m afraid he is going to assign me to mow his yard someday.

    I don’t know, actually.

    As for mowing his lawn – sheesh, Neil, if you were paying any attention, TT uses that as part of his workout. You couldn’t get that job if you begged. :)

    I completely agree about making people look a lot less sympathetic. It’s hard to want to help out people who throw monkey wrenches into the works whenever possible.

    Re: “Blind person driving” – I love it!

  4. Neil: How does TotalT get away with that? I’m afraid he is going to assign me to mow his yard someday.

    Bridget: I don’t know, actually.

    My Response: When I was a single man I possessed a certain charm that ladies couldn’t resist. I am afraid that the force is still strong within me even years later. I, much like Kramer, have the Kavorka [translated: “lure of the animal”].

    Of course this is only my humble and conceit free guesstimate.

    To learn more about the Kavorka click below

    http://en.wikipedia.org/wiki/The_Conversion_(Seinfeld_episode)

    My apologies to Bridget for my unintentional ability to get women to respond. The Kavorka is more curse than blessing. Perhaps I should take a garlic bath? HA!

  5. My apologies to Bridget for my unintentional ability to get women to respond.

    But if you don’t ask, you don’t have to worry about a response. :p

  6. “But if you don’t ask, you don’t have to worry about a response. :p”

    What can I say? Sometimes I can’t even control myself. I told you, the Kavorka is a powerful force- even over its owner.

  7. (Laughing) Can you use it to lead the trolls away, like the Pied Piper?

  8. It only works on females. Sorry.

  9. That’s not what Neil said.

    (Kidding, kidding.)

    If you ever figure out how to get it to work on males, too, would you let me in on your secret? :)

  10. This is a fascinating question. It’s worth noting that the ADA doesn’t “list[] examples” (emphasis added) of public accomodation, it lists twelve categories of facilities operated by a private entity, into which a place must fall in order to be deemed a place of public accommodation. Of course, you’re right that a website isn’t a zoo (with the possible exception of the Huffington Post), but one of those categories encompasses retail sales outlets (“baker[ies], grocery store[s], clothing store[s], hardware store[s], shopping center[s], or other sales or rental establishment[s]” (emphasis added)). So it’s not as immediately apparent to me that Judge Patel’s conclusion is absurd, although on later reflection it might turn out to be wrong. I suppose my first question would be this. The Target website itself, presumably, is in a literal sense accessible to the blind – one can reach the front page, it’s just nonfunctional, in the sense that blind persons can’t use the site for its actual purpose (viz. purchasing various goods). So could you analogize this, perhaps, to a movie theater where the blind can get physical access to the building, but can’t actually watch the movie? Well, movie theaters are covered by the ADA, so why are movie theaters not in trouble under ADA to the extent that the blind can get into the theater but can’t actually use the theater for the purpose for which one might visit it, watching a movie?

    Also, I don’t think Judge Patel’s conclusion as to mootness is as novel as you suggest (although it too is arguable). When a defendant seeks to moot a case by voluntary cessation of the challenged conduct, it must be “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur,” United States v. Phosphate Export Assn., 393 U.S. at 203, and even if the case was deemed moot, it seems to me that there’s at least a colorable argument for invoking the mootness exception doctrine (that doctrine, for cases that are “capable of repetition yet evading review,” applies in “exceptional situations where the following two circumstances are simultaneously present: (1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again.” Spencer v. Kemna, 523 U.S. at 17 (internal citations and quotation marks omitted)). Of course, that’s arguable too, but I don’t think it’s totally outlandish, at least on first glance.

  11. As for mootness:

    I’m not sure that a web site would meet the requirements of “too short to be litigated prior to cessation or expiration.” The classic example of this is pregnancy, where there is a definite time limit. Here, the judge is essentially stating that the fact that web sites can be changed (and frequently are changed) is the reason for the exception to mootness. That’s like saying, “Well, we know there was a discrimination complaint against this company, and the company fixed the problem, but they are always hiring new employees, so they will be subject to judicial oversight forever.”

    Good analogy re: movie theatre. I just read (and will post an update) that the complaint is that common screen-reading devices do not work properly with the Target website. Well, that seems to be a problem with the screen-reading devices: surely, the ADA cannot be read so as to mandate that web-based businesses change their operations so as to be compatible with those of all current products on the market.

    Concur with the idea that there is access to the site, but the state of blindness imposes problems with full appreciation.

    I have visions of someone suing the Met or the Getty under similar theories…..

  12. Thanks for the great post.

    While government can and does regulate its own agencies’ conduct, it is concerning that some would place the state in a regulatory role over files legally placed on private equipment.

    If such laws had been inforce earlier many of the technologies that are now more accessible, would likely have failed to gain market adoption.

    Most podcasts aren’t accessible to the deaf. Flash, web video, and virtual worlds omit blind users becaue they are visual. The impact of this law would be massive web reworks, and a duller medium.


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