“Is your website accessible? That’s an important question, since the U.S. Department of Justice has made it clear ‘public accommodation’ under the Americans with Disabilities Act applies to websites. That means content on your website should accommodate people with vision, hearing, and other impairments.”
Those aren’t my words. They came from an article in online Realtor®Mag (Website Accessibility: Not Just About the Law; May 12, 2016). “Now, wait a minute,” a sincere, but confused, agent or broker might say, “I get the ADA (Americans with Disabilities Act) applying to things like a lack or ramps or special parking places, but websites? How does that work?”
Title III of the ADA prohibits discrimination against individuals in any place of public accommodation. To comply, a public accommodation must “furnish auxiliary aids when necessary to ensure effective communication…” and “remove architectural and structural communication barriers in existing facilities where readily achievable.” Clearly, when the Act was written in 1990, no one had websites in mind. They didn’t yet exist. But, the Department of Justice (DOJ) and others have argued, with plausibility, that the ADA regulations should be interpreted so as to keep pace with developing technologies.
Federal Judicial districts are currently split over in what sense, or if at all, websites are “places of public accommodation” within the meaning, and subject to the terms, of the Act. Nonetheless, the DOJ has taken the position that they are, and the DOJ is the one with the big enforcement stick.
In 2010, the DOJ issued an Advance Notice of Proposed Rulemaking and solicited public comments regarding what standards the agency should adopt for website accessibility under Titles II and III of the ADA. More than 400 comments were received. To date, no rules have been forthcoming. It is now expected that rules will be adopted and made public by 2018.
The lack of clear publicly-known rules has not deterred the DOJ from pressing forward with complaints and enforcement actions. (Who says government agencies lack initiative?) In large part, the DOJ has relied on non-governmental industry standards for website accessibility. These standards are known as the Web Content Accessibility Guidelines (WCAG) 2.0. They can be found online.
In December of 2013, the DOJ filed a complaint in intervention (essentially, joined in) in the lawsuit National Federation of the Blind (NFB) et. al. v. HRB Digital LLC to enforce Title III of the ADA. (HRB Digital is a division of H&R Block.) The complaint alleged that H&R Block failed to code its website in a manner that would make it accessible to individuals who have vision, hearing and physical disabilities. The complaint noted that “individuals with disabilities use various assistive technologies to access the Internet, including screen reader software, refreshable Braille displays, keyboard navigation and captioning, among others that are not currently compatible with H&R Block’s website. These technologies have been widely used for decades … and are freely available to help companies ensure that individuals with disabilities can fully and equally enjoy their web-based goods and services.” Two plaintiffs in the case alleged that they tried to complete their 2012 tax returns on the H&R Block website but were unable to do so.
A settlement and consent decree was announced by the DOJ on March 6, 2014.
The H&R Block case is instructive as to what website accessibility is all about. Brick and mortar places of public accommodations (restaurants, retail stores) aren’t expected to supply the technology, such as wheelchairs, that enables mobility-impaired customers to get around. But they are expected to provide an environment (ramps, wide doors) where that technology can be used.
The argument in a case such as that of H&R Block is said to be similar. A website where business is conducted (and ads can be read) is expected to provide an environment where the applicable assistive technologies, such as screen readers, can work.
Still, it would be nice to know exactly what the rules are. Last year, NAR President, Tom Salomone, wrote to Assistant Attorney General, Vanita Gupta. He observed the current “uncertain state of the law”, and noted the following: “A number of demand letters, which include the threat of litigation, have been sent to NAR members alleging that their real estate websites violate the civil rights of individuals with disabilities.”
Salomone points out that the lack of clear regulations “has encouraged these lawsuits and left our members confused about how to mitigate legal risks in this area…” He urges the DOJ to publish rules as soon as possible.
Well, the rules still haven’t been published. A recent posting on Realtor.org discusses the case of Robles v. Dominos Pizza (United States District Court, Central District of California, March 20, 1917). There, the plaintiff sued on the grounds that “Defendant’s website, Dominos.com, does not permit a user to complete purchases using a particular screen-reading software program, Job Access with Speech (‘JAWS’).”
The case was dismissed because the rules have not yet been finalized. Looking at an earlier case, the court noted “The Ninth Circuit stated that the failure to issue final rules left ‘in-house counsel [and] others to read correctly legislative tea leaves’ and requiring compliance with unknown standards constituted a denial of due process.”
Nonetheless, real estate firms are well-advised to be looking at their websites from an ADA compliance perspective. Sooner or later there will be published rules, and compliance will not be optional. A number of firms exist that can provide assistance in this. For more background, go to Realtor.org and search for “website accessibility.”