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Americans With Disabilities Act (ADA)

Quick Takeaways

  • The ADA is an “equal opportunity law” for people with disabilities
  • A disability is defined as physical or mental impairment that substantially limits one or more major life activities
  • Or a person who has a history or record of such an impairment

Source: Introduction to the ADA (U.S. Department of Justice)

The Americans With Disabilities Act (ADA), signed into law on July 26, 1990, makes it unlawful to discriminate against people with disabilities. The law has five sections or "titles" which apply to employment, public services, public accommodations, services operated by private entities, and telecommunications. Title I affects real estate offices and Association offices if they have the threshold number of employees. Title III affects Association offices, real estate offices, and commercial facilities. 

Title I of the ADA applies to employment and protects qualified persons with a disability who can perform the essential functions of the job with or without reasonable accommodation. Thus, if a real estate sales office has 15 or more employees, Title I applies. 

Title III of the ADA prohibits entities that own, lease, lease to or operate a place of public accommodation from discriminating against the disabled. Businesses covered include hotels, restaurants, convention centers, sales establishments including real estate offices, offices of professionals such as attorneys and CPAs, etc. If a real estate broker or salesperson has a home office in which business is conducted with customers, that portion of the home must also be in compliance with the ADA. The ADA requires equal access and services to disabled individuals in the most integrated setting possible. In essence, that means that architectural and communication barriers are to be removed in existing facilities where such removal is readily achievable and can be carried out without much difficulty or expense. Examples of steps to take in order to remove barriers include installing ramps, rearranging tables and chairs, repositioning telephones, adding raised markers on elevator control buttons, widening doors, or installing offset hinges to widen doors.

The U.S. Department of Justice is the most authoritative source of Americans with Disabilities Acts (ADA) laws and compliance. You can also find information about filing a complaint, disability resources and much more.

REALTOR® Magazine, REALTOR® AE Magazine and NAR provide you with additional material, such as fair housing resources, an ADA Compliance Kit and compliance tips for your brokerage.

Website accessibility is an important part of the ADA. Text to speech, transcripts for videos, website functionality using both a keyboard and a mouse are important elements of accessibility. Making your website accessible is good business for all your customers.

The ADA has been law for over 30 years. Find out its impact on the workplace and society and how the fight still continues. The EEOC says that COVID impairments may be considered disabilities.

See References for more information.

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Advocacy

What is the fundamental issue?

Under the Americans with Disabilities Act (ADA), attorneys may collect fees related to pursuing claims of non-compliance of the law, but plaintiffs are not permitted to collect damages. These suits often target easily-correctible infractions such as signage, soap dispenser heights, and transition lifts on ramps. Owners of these properties often have a reasonable belief that they are in compliance with the law based on state and local inspections. According to the International Council of Shopping Centers (ICSC), these lawsuits, commonly referred to as “drive-by lawsuits,” are on the rise, with 2016 seeing a 37% increase.

I am a real estate professional. What does this mean for my business?

The ADA’s lack of a notice requirement leaves commercial property owners, who may in good faith believe that their businesses and buildings are in compliance with the law, vulnerable to lawsuits.  Once a suit is filed, there is no opportunity to cure the infraction, so property owners spend time and money on attorneys and paying fees which could instead have gone towards fixing the issue. The ADA does not allow victims to collect damages, so a portion of the money goes to paying attorneys’ fees.

NAR Policy:

NAR supports requiring prior notification of, with an opportunity to correct, alleged violations of the Americans with Disabilities Act before a lawsuit on that alleged violation can be filed, while reaffirming support for the Americans with Disabilities Act and programs that encourage compliance with ADA laws.

Legislative/Regulatory Status/Outlook

Bills have been introduced in Congress for several years which would add a “notice-and-cure” requirement to the ADA, to require that businesses being sued for violations to the ADA receive notice of the violation and an opportunity to fix it before a suit can be filed. In the 115th Congress, two bills have been introduced in the House to address the issue. One bill, H.R. 620, passed the House of Representatives. Ahead of its passage, NAR issued a commercial-targeted call-for-action, as well as sent a letter of support to the full House. Several state associations also weighed in with letters of support to their Congressional delegations. Unfortunately the bill was unable to gain traction in the Senate due to strong opposition from the disability rights' community.

In the 116th Congress (2019-2020), NAR continued to push for a legislative fix, and met with the Senate Judiciary Committee staff to discuss different potential solutions. NAR is a part of a coalition of industry groups focused on advocating for a solution to the issue of drive-by ADA lawsuits, and will continue to work toward that goal in the current Congress.

Current Legislation/Regulation

None at this time.

In-Depth

Letters to Congress - Americans with Disabilities Act

Letters to Congress - Americans with Disabilities Act Reform

Issue summary

NAR Federal Issues Tracker

Legislative Contact(s):

Erin Stackley
202-383-1150
estackley@nar.realtor

Bryan Greene
bgreene@nar.realtor
202-383-1114

Regulatory Contact(s):

Erin Stackley
202-383-1150
estackley@nar.realtor

Bryan Greene
bgreene@nar.realtor
202-383-1114

References

NAR Library & Archives has already done the research for you. References (formerly Field Guides) offer links to articles, eBooks, websites, statistics, and more to provide a comprehensive overview of perspectives. EBSCO articles (E) are available only to NAR members and require the member's nar.realtor login.

Fair Housing Handbook, Fifth Edition—Item # 166-1084

This handbook is an excellent resource for fair housing guidance. It is the most comprehensive fair housing resource available in the industry.

Includes:

  • Suggested fair housing office procedures
  • Background on fair housing regulations
  • Samples of the HUD
  • Equal Housing Opportunity poster logo
  • Equal service report forms
  • Information on the NAR/HUD partnership
  • Self-assessment questionnaire

Order online or call NAR's Contact Center at 1-800-874-6500.

Information From the Department of Justice

Federal ADA and Disability Resources (U.S. Department of Justice)

How to File an Americans with Disabilities Act Complaint with the U.S. Department of Justice (U.S. Department of Justice)

If you believe that you or someone else was discriminated against based on a disability, you can file an Americans with Disabilities Act (ADA) complaint against a state government or local government, such as a public hospital, public school, other state or local government program; a private business that serves the public, such as a restaurant, doctor’s office, shop, or hotel.

Introduction to the ADA (U.S. Department of Justice)

To be protected by the ADA, one must have a disability, which is defined by the ADA as a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment. The ADA does not specifically name all of the impairments that are covered.

Frequently Asked Questions about Service Animals and the ADA (U.S. Department of Justice)

Are emotional support, therapy, comfort, or companion animals considered service animals under the ADA?

No. These terms are used to describe animals that provide comfort just by being with a person. Because they have not been trained to perform a specific job or task, they do not qualify as service animals under the ADA. However, some State or local governments have laws that allow people to take emotional support animals into public places. You may check with your State and local government agencies to find out about these laws.

Topics of Interest on ADA.gov (U.S. Department of Justice)

The process that the Department of Justice uses to certify that State laws, local building codes, or similar ordinances meet or exceed the ADA Standards for Accessible Design for new construction and alterations, go to Certification of State and Local Building Codes.

Information From NAR

ADA Websites: What Associations Need to Know (National Association of REALTORS®, Jun. 10, 2022)

“ADA website accessibility remains a hotly-litigated issue nationwide with a 14% increase in lawsuits targeting websites in 2021. Add to that a barrage of demand letters specifically targeting the real estate industry, and it's a risk for associations, MLSs and their members.”

ADA Website Accessibility DOJ Guidance (National Association of REALTORS®, Mar. 21, 2022)

“NAR continues to recommend that real estate professionals work with their website vendors to do accessibility audits of their business websites to identify any accessibility deficiencies. Existing technical standards provide helpful guidance concerning how to ensure accessibility of website features. These include the Web Content Accessibility Guidelines (WCAG) and the Section 508 Standards, which the federal government uses for its own websites. In the meantime, NAR will continue to advocate that the DOJ issues a regulation that provides clear standards that take into consideration the challenges for businesses that develop and maintain accessible websites.”

Growing Accessibility Challenges (REALTOR® Magazine, Jul.-Aug. 2021)

The preponderance of Americans with disabilities who strive to live independently makes for a niche market that will only get larger. Not only will you earn a commission but you’ll get extra satisfaction by helping clients achieve their housing dream.

Americans with Disabilities Act Compliance Kit (National Association of REALTORS®)

How does this impact the real estate sales office?  As previously indicated, if a practitioner uses his or her home or a portion thereof as an office, the private residence or portion thereof used for business must be accessible to people with disabilities.  The Office on the ADA has issued some technical guidance for the real estate industry as follows.  For example, a two-story building with bathrooms on both the ground floor and the second floor will be used for a real estate office.

Fair Housing Compiled Resources (National Association of REALTORS®)

NAR has put together the resources to help and educate REALTORS® and associations on fair housing.

ADA Website Compliance

2024 Guide to ADA Compliance & Web Accessibility Requirements (Accessibility Works, Jan. 9, 2024)

Web accessibility is not only a moral obligation, but also a legal one. The number of web-related ADA lawsuits rise every year (summary of 2022 web related ADA lawsuit statistics). And with more than 96% of websites failing WCAG conformity, it could not be easier for trolling plaintiffs and lawyers to make easy money flooding businesses with demand letters, and state and federal lawsuits.

Accessibility for All: Designing an ADA-Compliant Website (U.S. Chamber of Commerce, Jan. 4, 2024)

As a business owner, you should prioritize ADA compliance on your website for ethical reasons and to ensure equal access for persons with disabilities. Neglecting this can lead to legal consequences like demand letters or lawsuits. Updating your website so it’s ADA compliant can benefit your business by broadening your audience, enhancing user experiences, and showcasing inclusivity.

Examples of ADA Compliant Websites (and Some That Are Not) (Whoisaccessible.com, Dec, 1, 2023)

Costco Wholesale is a multi-billion dollar global retailer. A glance at Costco’s accessibility page says all you need to know about its commitment to ensuring inclusive access. The web page has good keyboard navigation and a visible keyboard focus.

ADA Compliance for Real Estate Websites: What to Know for 2024 (accessiBE, Apr. 23, 2023)

All functionality within your website, including links, buttons, and forms, should be configured so that they can be accessed and operated using the keyboard alone. Website visitors shouldn’t have to be required to use a mouse or other pointing devices while engaging with your website. Ensuring your navigation is accessible also entails providing clear and consistent headings, labels, and instructions that will help website visitors who rely on screen readers properly navigate your website. 

Recent Articles on the ADA

Going Beyond ADA Compliance to Build Inclusive, Accommodating Communities (Minnesota Cities Magazine, Mar.-Apr. 2024)

To be fully inclusive and to prioritize employee and resident well-being, cities can — and should — focus on how to be more accommodating beyond the legal requirements of the ADA, always considering disabilities that may not be as visible, too, said Arianna Bloom, LMC diversity, equity, and inclusion coordinator.

“When we talk about building welcoming environments and inclusion, a lot of the time disability is left out of the conversation,” Bloom said.

10 Myths About the ADA (Proactive Access, Feb. 8, 2024)

Many existing pre-ADA buildings that are less than 3 stories tall are exempt from providing an elevator to access the levels above and below the ground floor. However, use of the elevator exemption does not obviate or limit, in any way the obligation to comply with the other accessibility requirements established in the ADAS. In other words, just because an elevator is not provided at a 2 story building, it does not exempt a facility from full ADA compliance on the 2nd level.

Understanding ADA Compliance for Commercial Properties (Sayer Regan & Thayer, Feb. 7, 2024)

Ensuring that commercial properties are ADA compliant is not just about avoiding penalties; it’s about creating inclusive spaces where every individual can have equal access to services and opportunities. As a real estate attorney, my advice to property owners is always to be proactive. Regularly assess your property, consult with professionals, and make the necessary modifications. Inclusivity and accessibility are not only the law, but they also make good business sense.

The ADA Does Not Apply Equally to New and Older Buildings (United Spinal Association, Jan. 19, 2024)

Surprisingly, Title II of the ADA does not require a state or local government to make each building and facility accessible. Instead, it applies the concept of program access. This means people with disabilities must not be excluded and must be able to participate meaningfully in government programs, services, and activities.

Useful Websites

ADA National Network

The ADA National Network provides information, guidance and training on how to implement the Americans with Disabilities Act (ADA) in order to support the mission of the ADA to “assure equality of opportunity, full participation, independent living, and economic self-sufficiency for individuals with disabilities.”

American Foundation for the Blind

We advocate for better policies that promote accessibility and ensure equality and opportunity for people who are blind or visually impaired, creating a culture of inclusion at work, at school, and in our communities.

The American Association of People with Disabilities

As a national cross-disability rights organization, AAPD advocates for full civil rights for the over 60 million Americans with disabilities by promoting equal opportunity, economic power, independent living, and political participation.

American Association on Intellectual and Developmental Disabilities

AAIDD promotes progressive policies, sound research, effective practices, and universal human rights for people with intellectual and developmental disabilities.

Disability Overview

The ADA is a comprehensive civil rights law for persons with disabilities. Title II of the ADA prohibits discrimination on the basis of disability in all programs, services, and activities provided or made available by public entities (state and local governments and special purpose districts). This includes housing when the housing is provided or made available by a public entity regardless of whether the entity receives federal financial assistance.

National Association of the Deaf (NAD)

The National Association of the Deaf (NAD) is an organization that serves the deaf and hard hearing people in the US. They believe that every deaf/hard hearing individuals should have the opportunity to learn sign language, advocate for their issues, and to represent these individuals on a national level.

National Council on Disability

NCD is an independent federal agency charged with advising the President, Congress, and other federal agencies regarding policies, programs, practices, and procedures that affect people with disabilities. NCD is comprised of a team of Presidential and Congressional appointees, an Executive Director appointed by the Chair, and a full-time professional staff.

Books, eBooks, Videos, Research Reports & More

As a member benefit, the following resources and more are available for loan through the NAR Library. Items will be mailed directly to you or made available for pickup at the REALTOR® Building in Chicago.

Accessible Housing: Quality, Disability, and Design (eBook)

Beginner’s Guide to the Fair Housing Act (eBook)

Disability in American Life (eBook)

Disability Law and Policy (eBook)

Demystifying Disability (Audiobook)

Estate Planning for People with a Chronic Condition or Disability (eBook)

The Power of Disability (eBook, Audiobook)

Enabling Acts The Hidden Story of How the Americans with Disabilities Act Gave the Largest U.S. Minority (eBook)

A Web for Everyone (eBook)

Barrier Free Residential Design (New York, NY: McGraw-Hill, 1994) NA 2545 P36

ADA Handbook: Employment and Construction Issues Affecting Your Business (Chicago, IL: Real Estate Education Company, 1993) TH 153 R23

The Americans with Disabilities Act: A Review of Best Practices (New York, NY: American Management Association, 1993) TH 153 Am3

ADA Title III: Compliance Made Practical (Chicago, IL: Institute of Real Estate Management, 1992) HD 1394 In7ad

ADA Compliance Guidebook: A Checklist for Your Building (New York, NY: Building Owners & Managers Association International, 1991) TH 153 B86

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