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RE: Legal Precedent Set for Web Accessibility

From: Jim Tobias <tobias@inclusive.com>
Date: Mon, 11 Sep 2006 09:51:04 -0400
To: <cynthia.waddell@icdri.org>, <w3c-wai-ig@w3.org>, <webaim-forum@list.webaim.org>, <gawds_discuss@yahoogroups.com>
Cc: "Linda Kilb" <lkilb@dredf.org>, "Lainey Feingold" <lfeingold1@earthlink.net>, "Karen Peltz Strauss" <kpsconsulting@starpower.net>, "Susan Henderson" <shenderson@dredf.org>
Message-ID: <02eb01c6d5a9$53ee18e0$6801a8c0@velo>

Hi again,

What I'm arguing is that there can be no legislative intent analogy here.
Target argues that:

1. Congress did not amend the ADA to include websites
2. Congress did amend the Rehab Act to include websites
Therefore
3. Congress did not intend the ADA to cover websites

But Congress did *not* amend the Rehab Act to include websites.  Nowhere in
any version of the Rehab Act, including the 1998 Workforce Investment Act
language, does it mention websites.  So Target's argument is false.

***********
Jim Tobias
Inclusive Technologies
tobias@inclusive.com
+732.441.0831 v/tty
www.inclusive.com
 

> -----Original Message-----
> From: w3c-wai-ig-request@w3.org 
> [mailto:w3c-wai-ig-request@w3.org] On Behalf Of Cynthia Waddell
> Sent: Saturday, September 09, 2006 3:04 PM
> To: 'Jim Tobias'; w3c-wai-ig@w3.org; 
> webaim-forum@list.webaim.org; gawds_discuss@yahoogroups.com
> Subject: RE: Legal Precedent Set for Web Accessibility
> 
> 
> Hello Jim-
> This particular Target argument was one of many raised on the 
> basis of the ADA claim - not the Rehabilitation Act.  In 
> other words, there was not a claim or cause of action in the 
> complaint based on the Rehabilitation Act of
> 1973 and its amendments, including Section 508. 
> 
> Oral arguments by both parties included a discussion on 
> whether or not the Target.com website was a "place of public 
> accommodation."  Although the Rehabilitation Act is the 
> grandfather of the ADA in that it paved the way for 
> protections to be extended to the private sector, it was not 
> used by Target for that reason.  
> 
> The Order states that Target argued that although Congress 
> has amended the Rehabilitation Act to address accessible EIT, 
> Congress did not amend the ADA.  Target was arguing 
> legislative intent.  On this sub-argument, this Court 
> concluded that it could not infer that Congress intended the 
> ADA to apply to the Internet.  
> 
> The issue of whether or not a website is a "place of public 
> accommodation"
> is still alive since the Court declined to dismiss the 
> complaint on this basis.  Both sides presented arguments 
> addressing case law where some jurisdictions say it is a 
> "place of public accommodations" while others say it is not.  
> I discuss these cases in my chapters for the Apress 
> publication that was released in July - Web Accessibility:  
> Web Standards and Regulatory Compliance.
> 
> I hope this answers your question.
> 
> Sincerely,
> Cynthia Waddell
> 
> 
> --------------------------------------
> Cynthia D. Waddell, JD
> Executive Director and
> Law, Policy and Technology Consultant
> International Center for Disability Resources
>    on the Internet (ICDRI)
> Phone:  (408) 691-6921
> 
> ICDRI is based in
> Raleigh, North Carolina USA
> www.icdri.org/CynthiaW/cynthia_waddell.htm  
> 
> See My New Book! 
> Web Accessibility:  Web Standards and
> Regulatory Compliance by Apress
> at www.icdri.org/WSR_Book.htm
> Other Publications Include: 
> Constructing Accessible Web Sites
> www.icdri.org/constructing_accessible_web_site.htm
> 
> Is your Site Accessible? 
> Find out now with Cynthia Says! http://www.cynthiasays.com 
> Endorsed by the American Council of the Blind, the Cynthia 
> SaysTM portal is a joint Education and Outreach project of 
> ICDRI, The Internet Society Disability and Special Needs 
> Chapter, and HiSoftware. 
>  
> -----Original Message-----
> From: Jim Tobias [mailto:tobias@inclusive.com]
> Sent: Saturday, September 09, 2006 10:03 AM
> To: cynthia.waddell@icdri.org; w3c-wai-ig@w3.org; 
> webaim-forum@list.webaim.org; gawds_discuss@yahoogroups.com
> Subject: RE: Legal Precedent Set for Web Accessibility
> 
> Cynthia -- thanks so much for this.  I have one question, below.
> 
> ***********
> Jim Tobias
> Inclusive Technologies
> tobias@inclusive.com
> +732.441.0831 v/tty
> www.inclusive.com
>  
> > 1.  In Footnote 2, the Court suggests that the legislative 
> history of 
> > the ADA is inconclusive on the issue of regulating private websites.
> > As a result, the Court declines to draw an inference since 
> there is an 
> > absence of congressional action.
> > Target argued that although Congress amended the 
> Rehabilitation Act to 
> > require federal government websites to be accessible, 
> Congress has not 
> > amended the ADA.
> 
> Here's my non-lawyerly understanding:
> 
> The 1998 version of Congress's 508 language is different from 
> previous versions, but not with respect to requiring websites 
> to be accessible.  The differences have to do with the 
> process of establishing standards, having DoJ do reports, 
> etc.  All the language about the accessibility of federal 
> E&IT was in the previous versions.  It may be that the 
> definition of E&IT changed at some point in an update of 
> Clinger-Cohen.
> 
> Is that correct?  If so, was Target's argument addressed in court?
> 
> 
> 
> 
> 
> 
> 
Received on Monday, 11 September 2006 13:51:33 GMT

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