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Three cheers for Target for fighting accessibility
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By: Peter Abrahams, Practice Leader - Accessibility and Usability, Bloor Research Published: 18th October 2007 Copyright Bloor Research © 2007 |
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StumbleUponIn March this year I wrote an article about accessibility law suits going through the American courts. One of the cases was against Target, one of the largest retailers in the US. The claim being that the Target website was not accessible to a blind person.
If Target had been sensible they would have cried 'mea culpa', promised to improve the web-site, made a small pay-out and the whole story would have disappeared without a trace. Instead Target's attorneys decided to fight the case at every turn. In a recent judgement the US court has thrown out all the important arguments so far (for more details on the ruling see an article by Out-Law http://www.out-law.com/page-8539). This means that the scope and the intent of the law is much clearer and this should make it much easier for accessibility advocates to press their case in the future. Hence my three cheers for Target! The case will now go forward as a class action so the total damages may be substantial.
The messages to all e-commerce sites owners should now be clear:
- The laws on accessibility apply to your site.
- You would be brave, or more correctly foolhardy, to try and claim some special exemption, as you are likely to fail.
- The law is now clear and public so the courts will not be sympathetic to the plea 'I did not think it applied to my site' or even worse 'I did not know about the law'.
So how should e-commerce owners react?:
- Do not panic.
- Recognise that the principles apply to you even if you are not based, or market, in the US because most other jurisdictions now have relevant laws in this area
- Arrange an initial assessment of your sites to understand the size and scope of any problems. It is possible they may be small.
- Increase your awareness of accessibility and the related usability benefits. One simple way is to read my previous, and future, articles and blogs.
- Build accessibility into your requirements definition process.
- Create a realistic plan to move towards accessibility.
If you are seen to be actively working on accessibility neither the courts nor the accessibility advocates will wish to take action against you. They understand that moving to accessibility takes time and must be done in a cost effective and realistic fashion. They also recognise that there are other enterprises that they should chase as they are still not taking the issue seriously and need to be prodded to conform.
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18th October 2007: 'Glen' said:
So let me get this straight. You think it is funny that a company is being sued for non-compliance? Whilst this maybe good for the accessibility movement, it certainly isn't for the company involved. Isn't there too much compliance and red tape these days? Doesn't it strangle some companies? I would certainly be put off starting up in business. What about a list of resources from the author - a pack to help companies stay on the straight and narrow, avoiding the pitfalls and helping them to focus on core business needs?BTW - Are there government grants available so we can pay the extortionate fees that web developers charge? Is there a professional body / association of webbies that people can use - to ensure they get quality and compliance for their money?
18th October 2007: 'ben' said:
shame on the legal system and the ACLU! what's next? Sue the paper manufacturers because blind people can't read printed text? How about a person with sight sues a company that prints only brail books saying that the lack of printed text along side the brail is violating their right to read the book. Why doesn't the ACLU sue the auto makers saying that the cars don't allow for a blind person to drive? Where is the common sense? It's not the website that displays to the user, it their PC. _If_ any tech is a fault, it would be the reader on the PC. If a web browser can render the page properly, then the page is fine & the reader needs correcting.
18th October 2007: 'Peter Abrahams' (Author) said:
I see from the comments from Ben and Glen that I and my accessibility advocacy colleagues have a long way to go in explaining the importance of accessible ICT and raising awareness of the issues. The one bright spot is that at least Ben and Glen read what I say so I may eventually bring them around.
So let me try and explain why their views are wrong.
Glen, I certainly do not think it funny that a big company is being taken through the courts but I do try and write my blogs and articles light hearted as I believe it helps my readers to understand my serious points.
Society as a whole, and corporations in particular, have a responsibility to ensure that the lives of anyone with a disability is made as easy as possible. The laws (or Glen's red tape) is just a reflection of those social responsibilities. To take a simple example a person in a wheel chair should be able to get into public buildings and no one would accept a new building being put up that debarred wheelchairs.
People with disabilities have found the internet a particularly liberating possibility just compare the experience for a person with vision impairment going into to supermarket or doing the same shop on-line. Therefore it is particularly important that websites are accessible. It really is not a matter of red-tape but of good citizenship. Further the process of creating accessible web sites has been show to make them more usable by a very wide sector of the population.
Glen if you click on my name at the top of this article you will find a series of articles I have written on various specific accessibility issues and also a free whitepaper that you can download that will provide you with a road map for developing accessible websites. If you include this in your requirements the cost should not be significantly more than producing a badly designed site. Included in this are suggested for organisations that will help you do it right.
Ben: The common-sense is with ACLU and not with you the courts would throw all your examples out very quickly because the law talks about reasonable adjustments. It is not possible to adjust a car so a blind person can drive it but it is possible to adjust so a paraplegic can. When you look at websites you can make reasonable adjustments to make them accessible.
Ben: Screen-readers, screen magnifiers and other assisitive technologies do the best job they can but they need the help of the web designer in some cases. To take two if there is a picture on a website the screen reader cannot tell the user what it is unless the web designer has added some text which briefly says what the picture is about, or defines it as eye-candy that a blind user does not need to worry about. This is not a difficult thing to add but makes the web site much more accessible. A second example is that a website should be navigable without using the mouse, a blidn user cannot use a mouse and many other users find using a mouse difficult or painful, everything should be accessible using the keyboard, again this is possible with a little thought from the web designer. Again if this is done well it actually improves the usability, many people do not want to use a mouse whilst filling in a form.
I hope this helps explain why I think the Target case is important as it raises the awareness of the issue and makes the world a little better for us all and a lot better for some.
18th October 2007: 'Strebe' said:
While I agree that making public buildings reasonably accessible and inserting html or other code tags that indicate visual content are both sensible measures, I do not agree with the following paragraph:
"Society as a whole, and corporations in particular, have a responsibility to ensure that the lives of anyone with a disability is made as easy as possible. The laws (or Glen's red tape) is just a reflection of those social responsibilities."
A corporation's exact and particular responsibility is to make money for its shareholders. Anything else that they do for society is either because it will increase profits, increase good will/public image (generally with the intent of increasing profits) or because it is imposed by the government of the land where it is located. Why do so many people have such a hard time grasping that a corporation does not come to exist out of social obligation?
That being said, corporations would be foolhardy not to take reasonable measures to accommodate disabled persons because... guess what - disabled persons spend money too. But to switch back again, it's only an obligation in as much as the government makes it an obligation, and any company who is using the "easy as possible" measuring stick will certainly go bankrupt on accommodations. I'm not a lawyer, but I believe the proper measure is to make goods and services accessible - not necessarily by means of the easiest method available. (For example, using the "easy as possible" measure, companies might be obliged to hire operators who would read and describe the entire website and all its contents to a disabled person and enter their orders for them - or even have sales representatives visit their homes with an assortment of goods. - this may be cost prohibitive)
Government is the entity that has a social responsibility. And in the matter at hand it appears that government is doing it's job and ruling in favor of what it believes is reasonable. Not because the company has a social obligation - but because the government says so... and that's o.k., that's the government's job.
19th October 2007: 'ben' said:
"Society as a whole, and corporations in particular, have a responsibility to ensure that the lives of anyone with a disability is made as easy as possible"Sadly, you are wrong. Society, corporations, government, et all have a responsiblity to make the best comprimises they can in order to serve the largest spectrum of people that they can. No matter what a web designer does, there will always be a subset of people who can not use a webpage based on some reason. To use your argument if a deaf person goes to a concert and can only feel the loudest vibrations, then they're not actually experiencing the concert and legally the concert providers must recreate the concert in a way that they can recieve. This is technically possible with complex wave analysis creating a vibration pattern and then feeding the pattern to some sort of wave generator that the deaf person can have access to. Noone would consider forcing bands to do this because it is obvious that a concert is an audio enviorment. It is equally obvious that the www is a visual enviornment. Some occomodation can be made for basic non-visual interaction, but there has to be a limiting point as some experiences can not be mapped from one sense to another. To point this out in your analogy about wheelchair access to buildings. Yes, ramps are common and expected everywhere, & they do provide access in and out of buildings, but they do not provide the experience that a non-ramp access has. To illustrate this, consider the Supreme Court Building. Going in/out of the building via the front steps gives a sense of the majastic and awe that the wheelchair ramp (located out of sight) can not do. The judge overstepped their power by deciding that accessiblity was the same as experience & dictated that Target had to provide more than access. Imagine all building everywhere having only ramps, no steps. This is possible, but not economically feasable to retrofit every building in the country. Again I say shame on the legal system for allowing this to get to court. I hope Target's lawyers wake up & get this smashed on appeal, otherwise it will mean the death of all small/medium web development shops as they are suddenly sued by everyone to go & recode everything.
19th October 2007: 'Glen' said:
Ben,
This just highlights the need for a professional web development body - like the BSC.
Web developers like everyone else should get certified, or not, and be held accountable.
If you committed some offence within your business would you not expect to be held accountable?
Well the same applies to all those web cowboys (and cowgirls) who think they can get away with charging extortionate rates by opening a copy of MS Word!
Glen
19th October 2007: 'ben' said:
Off topic, but yes, there does need to be an enforced standard for all software development (web apps & all others). Being a trained CS engineer, I cringe everytime I see poorly written code. The certification won't ever happen. The reason is simple. Applications are written on demand. Demand is initiated by marketplace. Marketplace is controlled by business people. Get a group of buisness people together and ask them how difficult they think web pages are to create. The phrase "my makes web pages all of the time" will come up. Given the belief that these people can write software & ask significantly less than actual engineers, the business people naturally go with a lower bidder. This is a socially accpeted "fact" in the business world that you don't need an actuall engineer. This is what needs to change first, but in the US, business mentality moves at the speed of a snail.
19th October 2007: 'Peter Abrahams' (Author) said:
BenYou are right business will often go for the cheapest solution and get what they deserve. In the case of accessibility the answer is to have laws that requires them to develop solutions that meet certain standards. If there is a legal requirement then they are more likely to employ people who are certified. So in this area I hope we are both on the same side.
I must apologise to my readers for some rather loose wording in early responses on this blog. 'Easy as possible' was sloppy wording but may be a short hand for easy as reasonably possible. Web sites should make reasonable adjustments to accommodate as wide a population as possible. It is possible to argue about what accommodations are reasonable but as time goes on more and more accommodation should be consider the norm.Ben's analogy with the steps of the State Court House is interesting. If the building already exists then it may not be reasonable to try and adjust the building so much so that it provides the same awe as a pedestrian might experience. However, it is absolutely essential that adjustments are made so that a wheelchair user can enter the building and make use of the facilities and functions within it. If a new building is being built then every effort should be made to provide the same experience for all so a ramp should be incorporated into the main entrance even if steps are still included. Do not forget this does not just aid the wheelchair users but also people who find stairs hard to climb or those pushing buggies or pulling trolleys with court papers.As I said in the original entry no one expects existing non-accessible websites to change overnight but would expect to see plans to improve the situation. Designs of new sites should include accessibility in the requirements.I further disagree with Ben that the web is a visual medium. It is a information channel and a visual browser is just one of its end points. Information on the web is increasingly being used in non visual ways think of search engine browsers, and comparison engines both can be considered as 'blind'.Also we would think of television as a audio-visual environment but now most channels have sub-titles for the hard of hearing and audio descriptions for people with vision impairment. Why then should we think of the web, a newer medium, to be limited to vision.Making the web accessible to most people is technically possible, it is also desirable let us move in that direction as quickly as is reasonable rather than kicking and screaming against it.
19th October 2007: 'Peter Abrahams' (Author) said:
Glen
Could you just clarify what you were referring to with the initials BSC?
Did you mean BCS (British Computer Society) and just got the spelling wrong? If not can you expand the initials please?
19th October 2007: 'ben' said:
I would really like to see a certification for software engineers the same as other engineers (structural, chemical, etc) must have. However, it should be noted that certification only tests competency of execution of a plan, not the ability to design. This is the realm of the still ill defined software architect. An engineer can be trained in the easy to test arenas of coding skill, algorithm design, etc. A software architect must be trained in the subleties of human computer interaction, a soft and often difficult to teach discipline that involves a lot of pyshcology, law, ethics, and artistry (for examples of bad design that could be coded well, go to the interface hall of shame).
"Web sites should make reasonable adjustments to accommodate as wide a population as possible"
So we agree that there will always be a subset of people for whom reasonable adjustsments still don't make a website usable. It sounds ugly to say, but how disabled does a person have to be before designing a website to accomodate them is considered unreasable and a web designer is not legally responsible to accomodate them? Blind? Deaf? Limbless? What if they are mentally retarded? This is the quagmire that the judge has created. In addition, by clearing the way for a class action lawsuit, the judge has said 1) you must make every legally blind person in the U.S. happy (an impossible task) or 2) have deep enough pockets to buy off anyone whom you can't make happy.What is worse, the judge is holding Target.com's programmers hostage to the meaning of "full and equal access". Without ruling on standards to define this phrase (another impossible task) she is instead reviewing the changes they have made & ruling that they were inadequate without giving them a realistic feature goal to aim for. This puts their programmers in a loop of change, test, deploy, & demonstrate without knowing what they are aiming for! Anyone who has every programmed should see this as federally created feature creep with no discernable end in sight. Shame on Judge Patel! As this case will set precedent, this means that ALL websites are now subject to federal judicial review to ensure that they comply with the ADA & California's Unruh Act.
Note : my first comment mentioned the ACLU. I was mighty tired & meant to say the NFB (National Federation of the Blind) not sure how I messed that one up. sorry.
24th October 2007: 'Bob Easton' said:
Ben makes a very good point about the judge opening up to a class that is not well specified. Almost anyone could make a claim and expect a settlement.
First, I wonder how long a mid-trial ruling like this will stand as "settled law" that will cause others to take heed. It seems to me that settled law becomes important after a settled case, and this one isn't yet.
Back to the point of being non-specific... A few days ago, I had the great pleasure if hearing a talk by John Hockenberry, a renown journalist who is also a paraplegic. When asked what he thought of the ADA, he responded that it was a "missed opportunity." He went on to explain that many people compare the ADA to the Civil Rights Act of 1964, both anti-discrimination laws.
He sees the Civil Rights Act as successful because it set the stage for a very large discourse, during which we reached many points of consensus about what behavior we can accept.
The ADA failed to do the same. No notable discourse followed. No sets of acceptable and unacceptable behaviors were formed by consensus. Essentially, no "buy in" was reached.
The results are that almost every case has been thrown to the courts and individual judges, not the consensus of interested communities, determine the results (set new rules for behavior), very often to the detriment of People with Disabilities.
In that sense the ADA is indeed a "missed opportunity." Hockenberry observes that it would be abhorrent in today's society to see a sign at the restroom door which says "Whites only," but that it's perfectly acceptable to see a sign that says "Wheelchair access in rear."
Seeing the ADA as this sort of failure, why should we champion this particular ruling which seeks to extend the dysfunctional ADA into new territory?
Returning to Ben's point, we have an exceptionally vague ruling that opens an exceptionally vague law up to all sorts of potential interpretations, and maybe an endless series of additional lawsuits.
Yes, the Web needs ways to make access better for People with Disabilities, but the ADA is a lame horse to ride for that purpose.
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