[Nfbc-info] social networking website resolution

Sat Dec 6 05:31:02 UTC 2008

I stand corrected.  Apparently I overlooked the awesome reach of the state
claims as I was using the decision for federal ADA research.  Here's the
actual text from the order:
-
What the court alluded to in its previous order, it will now hold explicitly
for the purposes of class certification: the Unruh Act and the DPA reach
Target.com as a kind of business establishment and an accommodation,
advantage, facility, and privilege of a place of public accommodation,
respectively. No nexus to the physical stores need be shown. 

1. Unruh Act

The Unruh Act, California Civil Code section 51, et seq. states that

(b) All persons within the jurisdiction of this state are free and equal,
and no matter what their sex, race, color, religion, ancestry, national
origin, disability, medical condition, marital status, or sexual orientation
are entitled to the full and equal accommodations, advantages, facilities,
privileges, or services in all business establishments of every kind
whatsoever. 

The statutory text is not susceptible to the limited construction that the
Ninth Circuit has placed on the ADA. Weyer, 198 F.3d at 1114 (9th Cir.
2000). In its 1959 amendments to the Unruh Act, the California legislature
eliminated the list of physical places contained in the Act and replaced it
with the reference to "all business establishments of every kind
whatsoever." Warfield v. Peninsula Golf & Country Club, 10 Cal. 4th 594, 618
(1995) (discussing 1959 amendments to the Unruh Act); Gardner v. Vic Tanny
Compton, Inc., 182 Cal. App. 2d 506, 512 (1960) (describing interpretation
of previous statutory language limiting Unruh Act to "all other places"). By
contrast, the California Supreme Court has read the relevant language of the
Unruh Act to the broadest extent possible: "the word 'establishment,' as
broadly defined, includes not only a fixed location . . . but also a
permanent 'commercial force or organization.'" O'Connor v. Village Green
Owners Ass'n, 33 Cal. 3d 790, 795 (1983). In its most recent amendments to
the Unruh Act, the legislature made a specific finding expressing its
support for the expansive construction in O'Connor. See Cal. Civ.Code. § 51,
Historical Notes-Historical and Statutory Notes ("It is the intent of the
Legislature that the amendments made to the Unruh Civil Rights Act by this
act do not affect the California Supreme Court's rulings in [Marina Point]
and [O'Connor]."). Indeed, one federal district has recently construed the
term "business establishment" to include an exclusively internet-based
adoption agency. Butler v. Adoption Media, LLC, 486 F.Supp. 2d 1022, 1054
(N.D. Cal. 2007) (Hamilton, J.). In that case, the plaintiffs alleged that
the website's refusal to offer same-sex domestic partners the
adoption-related services on the same terms and conditions offered married
couples, violated the Unruh Act. None of these cases restrict the
applicability of the Unruh Act in the same way as the ADA; imposing a nexus
requirement on the class definition for the California subclass is,
therefore, not necessary. 

-----Original Message-----
From: nfbc-info-bounces at nfbnet.org [mailto:nfbc-info-bounces at nfbnet.org] On
Behalf Of Mazen
Sent: Friday, December 05, 2008 2:28 PM
To: 'NFB of California List'
Cc: 'Stephanie Enyart'
Subject: Re: [Nfbc-info] social networking website resolution

I'd like to clarify here, since I was the lawyer who filed the Target suit.

The Target suit alleged that Target.com was a service of the brick and
morter stores. This made  the ADA apply since the ADA applies only to
"places of public accommodation" which many courts (including the ninth
circuit covering California) have interpreted to mean that the ADA applies
only to physical locations. Since the website was a service of the physical
locations with such features as filling your prescriptions online, uploading
photos for printing at a Target store etc, it is inextricably linked to the
physical stores and is thus covered under the ADA. This was the first time
this theory has been advanced in litigation.

In addition, the Target law suit also alleged that California law,
specifically the Unruh Civil Rights Act and the Disabled Persons Act are
broader than the ADA and cover online commercial websites.  For example, The
Unruh act says "any business of any kind whatsoever ...shall not
discriminate on the basis of...disability." (this is from memory so forgive
me if the quote is not exact). Thus California anti-discrimination laws are
not limited to physical locations, and apply to on line retail. 

Judge Patel endorsed both theories. I think you can read her orders denying
Target's motion to dismiss and granting Class certification on
httP://nfbtargetlawsuit.com. 

As an aside, I believe the NFB is investigating Facebook. If you have
specific complaints, please contact Disability Rights Advocates at
httP://dralegal.org.  

M~

Mazen M. Basrawi 

-----Original Message-----
From: nfbc-info-bounces at nfbnet.org [mailto:nfbc-info-bounces at nfbnet.org] On
Behalf Of Brian Miller
Sent: Friday, December 05, 2008 3:03 AM
To: 'NFB of California List'
Subject: Re: [Nfbc-info] social networking website resolution

Hi Tim,

I think part of the intent of the Target lawsuit was to try and establish
the principle of online sites as facilities equivalent to brick and mortar
stores, therefore being covered under the ADA, addressing the point you
succinctly make below.

-----Original Message-----
From: nfbc-info-bounces at nfbnet.org [mailto:nfbc-info-bounces at nfbnet.org] On
Behalf Of Tim Elder
Sent: Friday, December 05, 2008 12:06 AM
To: 'NFB of California List'
Subject: Re: [Nfbc-info] social networking website resolution

Unlike Target.com, there is no Brick and Mortar physical Facebook store to
link a law suit to facebook.  The Target suit was only successful because
they  have physical stores which are in fact covered by the ADA.  Without
physical stores overlapping the web-based services, there isn't much good
law to base a suit upon.  So far, the reach of the ADA to web-only services
is extremely limited.

That being said, updating to the latest version of your browser (Internet
Explorer 7, Firefox etc.)and the Flash player plug-in version 10 makes a big
difference in accessibility of facebook.  Also, Jim Barber mentioned on
another list that m.facebook.com is another good alternative way to access
facebook.

I did have one question for the list though:  For those using facebook with
some success, I am wondering if the chat function is accessible.  As far as
I can tell, the chat function isn't usable, even though I can access most
other functions.  Jim?

Tim

-----Original Message-----
From: nfbc-info-bounces at nfbnet.org [mailto:nfbc-info-bounces at nfbnet.org] On
Behalf Of Lisamaria Martinez, NOMC
Sent: Thursday, December 04, 2008 6:32 PM
To: NFB of California List
Subject: [Nfbc-info] social networking website resolution

Hi,

I was wondering what we've done about the social networking website
resolution.

I have desperately tried to learn the layout of the new FaceBook, but I
swear the page is refreshing. Plus, certain aspects of the page just don't
read well with JAWS. for instance, JAWS will say, "---- has accepted your
friend request." I have no idea who may have accepted my friend request
because JAWS doesn't read it. But something is there.

It is getting to be quite frustrating especially since many groups,
organizations, etc. are on FaceBook. My high school class reunion is
starting to organize on FaceBook and I can't access everything.

If we sued Target, why aren't we suing FaceBook?

LM
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