Is your real estate website ADA compliant, and should it be?
When the ADA was signed, the internet barely existed. Now, it appears courts are moving in the direction of holding that some industry websites are considered “places of public accommodation” and thus subject to ADA regulations.
What is the Americans with Disabilities Act?
President George H.W. Bush signed the Americans with Disabilities Act (“ADA”) into law in 1990. The ADA seeks to prohibit discrimination in places of public accommodation and to provide remedies and enforcement actions for such conduct.
Since the bill became law, the ADA has evolved to include not just physical spaces that impact one with physical limitations from enjoying or accessing, but also electronic spaces as well, such as websites.
How does the ADA apply to websites?
The answer seems to lie in whether you sell goods, entertainment, or services through your website with a close connectivity with a physical space. The answer is also….well, maybe.
As you might imagine, the ADA itself makes no reference to internet websites. ADA, Title III, mandates that owners, lessors, or operators of a “place of public accommodation” provide equal access to disabled individuals. With nearly 2 billion people making online purchases, how does this apply to e-commerce websites?
Various courts have ruled that commercial websites are places of public accommodation and subject to ADA rules. In this regard, in Carparts Distribution Center v. Automobile Wholesaler’s Association of New England (1994), the United States Court of Appeals for the First Circuit held: “It would be irrational to conclude that persons who enter an office to purchase services are protected by the ADA, but persons who purchase the same services over the telephone or by mail are not. Congress could not have intended such an absurd result.” Two decades later, Winn-Dixie grocery chain was held to have violated the ADA by not making its site accessible to visually disabled individuals.
However, other courts have ruled the ADA doesn’t apply to online users at all. More confusingly, in September, 2018, the Department of Justice offered virtually no guidance on the ADA’s applicability to websites, stating only:
The Department first articulated its interpretation that the ADA applies to public accommodations’ websites over 20 years ago. This interpretation is consistent with the ADA’s title III requirement that the goods, services, privileges, or activities provided by places of public accommodation be equally accessible to people with disabilities.
-Department of Justice, September, 2018
In the absence of legislative clarity, we are seeing businesses sued under the ADA on the public accommodation-website theory to enforce its accessibility requirements. This includes real estate brokerages and property management companies.
How are websites maintained by real estate brokerages and property management companies impacted by the ADA?
In National Association of the Deaf v. Netflix, (D. Mass. 2012), the Court reaffirmed that twelve (12) venues under the ADA are considered places of “public accommodation,” including a “sales or rental establishment” and a “service establishment.” The judge concluded that Netflix’s website was a place of public accommodation.
Compass Real Estate is currently being sued for not making its website accessible to blind people. The lawsuit was filed on December 12, 2018, in New York. The thrust of the claims seems to be that Compass’ website affected blind people because it didn’t include “alt-text,” which is screen-reading software used to orally describe pictures, links, and images to blind people. The plaintiff, in particular, alleges that he was “unable to find the locations and hours of operation of Defendant’s physical real estate sales offices on its Website and other important information, preventing Plaintiff from visiting the locations to purchase items and to view the items.”
The Plaintiff asks the judge to order Compass to change its website to make it more accessible to visually impaired individuals - in other words, to comply with WCAG 2.0 guidelines.
WCAG 2.0 guidelines, created be the World Wide Web Consortium (known as W3C), establish guidelines for making websites accessible to blind people and “are universally followed by most large business entities and government agencies to ensure their websites are accessible.”
The Mayo Law Group PLLC believes it would be wise for e-commerce and real estate companies to take appropriate steps to ensure their websites are ADA compliant through compliance with the WCAG 2.0 guidelines.
The National Association of Realtors (“NAR”) seems to concur with our conclusions. Indeed, NAR recently advised that both real estate agents and businesses face liability over inaccessible websites. The NAR Chief Technology Officer stated that accessibility issues often relate to menu navigation, clicking and images, the last of which he has said should have “alt tags” that include descriptions “with some particularity.”
How do I comply with the WCAG 2.0 guidelines?
You can access a checklist for guidance here.
About The Mayo Law Group PLLC, a Spokane-based Landlord law firm
MLG is a full-service law firm operated by Mack and Katie Mayo, a husband-and-wife lawyer and paralegal team with exceptional knowledge of law and business.
Katie Mayo, the managing paralegal, has her B.A. in history and criminal justice from Gonzaga University in Spokane, Washington, and her Master’s Degree from Eastern Washington University in Cheney, Washington. She has owned and operated several highly successful businesses in the region. Before going into the law, she successfully ran a business as a professional horse trainer, owned and operated several investment properties, and served as a licensed counselor to underprivileged youth facing substance abuse issues.
Mack Mayo, the managing attorney, obtained his B.A. in English literature from Southern Methodist University in Dallas, Texas and his J.D. from Charleston School of Law before settling in Spokane, Washington to be a litigator. He has been selected as a Washington State Super Lawyer Rising Star and “Top Spokane Lawyer” for seven straight years for Business & Corporate Law and Class Actions & Mass Torts.
MLG has successfully performed hundreds of commercial and residential evictions; overseen complex secured transactions and business-to-business sales; prepared promissory notes, mortgages, and deeds of trusts for the purchase and sale of real estate (residential and commercial); tried cases to verdict, including obtaining a $850,000.00 verdict against the State of Washington for wrongful conviction; and successfully argued before the Washington Supreme Court. Currently, MLG represents dozens of businesses, including real estate owners, landlords, and property managers, in litigation and transactional matters, and as their general outside counsel.