Litigation Without Representation in Class Action Against Target
Most courts have rejected claims that websites have to be redesigned, at great inconvenience and expense, to accommodate their tiny number of visually-disabled visitors. But it doesn’t matter what most courts think, because trial lawyers can cherry-pick where to bring a class action lawsuit. They like to bring discrimination class actions in wacky San Francisco, where the judges interpret the law totally differently than they do in the rest of the country.Very few discrimination class-action lawsuits get brought in the Eastern District of Virginia, which is fairly evenly split between Democrats and Republicans, and which trial lawyers claim is pro-business. By contrast, a vast number of such lawsuits are brought in the Northern District of California, and in particular, in San Francisco, taking advantage of the fact that it is perhaps the most liberal district in the most liberal circuit in America (the Ninth Circuit Court of Appeals). That is so even though the nationwide class actions certified in San Francisco usually include residents of Virginia as class members, and any verdict affects business operations in Virginia. Such forum-shopping is routine for trial lawyers.
Now judge Marilyn Hall Patel, one of the most liberal judges in that district, has certified a nationwide class action against Target because a small number of visually-impaired people had difficulty viewing its website.
The plaintiffs claim that forcing Target to rewrite its websites doesn’t violate the First Amendment because the government has a strong interest in getting rid of discrimination, and any restriction on target’s speech is content-neutral.
Taking that line of reasoning to its absurd conclusion, we could be forced to translate all our speech into foreign languages (to avoid discriminating against non-English speakers), or to speak through a bullhorn (so hearing impaired people could hear us). Such restrictions would have a huge chilling effect on speech.
If the suit against Target prevails, many small businesses, to avoid being sued, will either stop doing business on the Web, or will reduce the range of services available on their websites. Everyone will lose as a result.
As if we don’t already have enough lawsuits, the House of Representatives is now poised to pass the ADA Restoration Act of 2007, which, contrary to its name, would fundamentally rewrite, rather than restore, the Americans with Disabilities Act (ADA) to it easier to sue. Under the bill, anybody who wears eyeglasses, or has a similarly trivial impairment, would be deemed a protected class!
Many of the bill’s sponsors falsely claim the bill is needed to roll back “conservative” Supreme Court rulings limiting the ADA’s reach. But the Supreme Court decisions they complain about were, in many cases, unanimous decisions joined in by justices of all ideological persuasions, including the Supreme Court’s 9-0 decisions in Toyota v. Williams (2002) and Albertson v. Kirkingburg (1999), which involved a truck driver with only one functional eye; and its 7-2 decisions in Murphy v. UPS (1999) and Sutton v. United Air Lines (1999), which held that wearing eyeglasses doesn’t make you a disabled person entitled to special accommodations. There’s nothing “conservative” about those rulings, which were not ideological at all, and they didn’t limit the ADA in any way inconsistent with its text or Congressional intent.
The plaintiffs suing Target claim its website is a “public accommodation” subject to disabilities-discrimination laws, and that the term “public accommodation” should be construed broadly in discrimination cases.
But when the First Amendment looms, courts should give statutory terms a narrow construction to avoid triggering serious constitutional problems, as the Supreme Court recognized in NLRB v. Catholic Bishop of Chicago (1979). In Haney v. University of Illinois, the Illinois Human Rights Commission invoked this principle of construction, and the principle that ambiguous statutes should not be interpreted as rendering a vast range of conduct illegal, in refusing to allow a Native-American student to sue for racial harassment under a state law banning discrimination in public accommodations because he was offended by a college sports team’s mascot, Chief Illiniwek.