“A jury on Friday said Southwest Airlines did not racially discriminate against an overweight passenger when she was asked to buy a second seat on her flight.” Nadine Thompson of Exeter, N.H., CEO of a successful cosmetics company, claimed the airline applied its “customer of size” policy in a racially discriminatory manner. On Friday Joel Drake, a Southwest employee, testified that Thompson herself had “accused him of being a ‘motherf—— racist pig’ and wished that his family would die from cancer when he tried to explain the company’s policy to her. …Thompson testified that Drake was bullying her and she felt scared, so words were her only way to fight back. She said she felt cornered and powerless.” (Kathy McCormack, “Jury: Southwest didn’t discriminate against passenger”, AP/Boston Globe, Feb. 10; “Told to buy 2 seats, Exeter woman sues Southwest, claims racial discrimination”, AP/Manchester Union-Leader, Feb. 8). Earlier second-seat suits: Dec. 20, 2000, etc. More: Thompson says she won’t appeal (AP, Feb. 15).
Per the WSJ Law Blog (Feb. 7): The National Federation of the Blind (NFB), represented by Berkeley’s Disability Rights Advocates as well as two law firms, has sued discounter Target, alleging that it violates California disabled-rights law because its website is not operable by blind computer users. “The suit charges that the site lacks, for instance, compliant alt-text, an invisible code embedded beneath graphics that allows blind users to decipher images. The suit also contends that because the Web site requires the use of a mouse to complete a transaction, blind customers are unable to make purchases on their own.” As longterm readers of this site know, demands for website accessibility under the ADA and similar laws have been simmering for years; in 2002 a federal court turned down such a claim with respect to Southwest Airlines’ website, and two years ago (Jan. 8, 2004) a NFB activist said disability advocates were biding their time, waiting for the right case to reopen the issue. It sounds as if the Target lawsuit may be that case. (& welcome readers of John Dvorak, who calls us “the always entertaining Overlawyered.com”).
More: at WebStandards.org, one enthusiast for the lawsuit says that it also calls into question the practices of Amazon.com, whose shopping engine, according to this commentator, powers the Target site. As I discovered when I started writing on this subject six years ago, many advocates of “web accessibility” seem quite surprised to learn that anyone actually disagrees with them on the merits of the matter, as opposed to just not being well enough informed about it. And: coverage in Law.com’s Recorder (Matthew Hirsch, “Suit Alleges Target Denies Blind Access to Online Shopping”, Feb. 14).
Grace Fuller claims that she suffered two epileptic seizures because a flight attendant used the phrase “Eenie, meenie, minie, mo, pick a seat, we gotta go” to passengers boarding an open-seating flight late; Fuller and her travelling companion, both African-Americans, ascribed racist meaning to the phrase, and sued under a variety of federal and state claims. Some claims were thrown out, and a jury did what a judge should’ve done sooner, and bounced the rest. (Feb. 9, 2004; Jan. 22, 2004 and links therein).
The United States Court of Appeals for the Tenth Circuit affirmed the district court judgment for defendants. After a full trial, and briefing for an appeal, the cost to Southwest Airlines of “Eenie Meenie Minie Moe” was surely in the six digits. But, though the law in questions permit plaintiffs to recover attorneys’ fees if they are successful (surely the only reason an attorney agreed to bring this suit), defendant Southwest Airlines is going to have to swallow the cost of this ridiculous suit. The opinion creates no precedent, so if Sawyer wants to sue someone else for using a nursery rhyme, she can do so in the future. (Sawyer v. Southwest Airlines Co., No. 04-3109 (10th Cir. Aug. 10, 2005) (hat tip to P.N.)).
The Southwest Airlines case (see Feb. 11, 2003, Jan. 22 of this year) turns out not to be the first time that the childhood counting-out rhyme has been cited as inflicting a hostile environment, with far-reaching repercussions. David Bernstein at Volokh Conspiracy (Feb. 5) prints a letter from a woman who lost her job over it in University City, Mo., near St. Louis. See Jeff Starck, “Can’t wait for end of P.C. age”, Webster Journal (Webster University), Dec. 5, 2002.
Updating the “eenie, meenie, minie, moe” saga featured in this space last Feb. 11: “Southwest Airlines is not liable for a flight attendant who upset two black passengers by using a version of a rhyme with a racist history, a jury determined Wednesday.” Attorney Scott A. Wissel had represented the two women in the Kansas City, Kan. federal trial. (AP/Wired News, Jan. 21)
In October 2002 a federal judge ruled against a claim that Southwest Airlines had violated federal law by failing to make its web site fully accessible to disabled internet users; the judge said a Web site isn’t a “place of public accommodation” covered by the Americans with Disabilities Act because it isn’t a “place” at all. In large part because of that ruling, there hasn’t been the rush that many of us expected to file ADA complaints against online publications and e-commerce providers. But the National Council on Disability, a federal agency, put out a position paper last summer (Jul. 10) aimed at renewing the push to get ADA applied to the Web. And disability rights activists, who are conceding nothing, hope to re-litigate the issue. “‘The Southwest Airlines ruling has set back the process of trying to get Internet sites covered by the ADA,’ said Curtis Chong, who heads the computer science division of the National Federation of the Blind. ‘But one of these days we’ll find a better place to file a better suit and maybe try and get it taken care of.'” If that ever happens, all hell is likely to break out in the online world. (Mark Thompson, “Courts Yet to Make Definitive Ruling on Online Access for the Disabled”, Online Journalism Review, Dec. 10). In its update the magazine quotes at considerable length what I told a Congressional panel in Feb. 2000 (and even runs my picture). Update Feb. 8, 2006: NFB sues retailer Target under California state law.