By Finley Maxson
REALTOR® associations and members should be aware of a growing legal threat from unscrupulous law firms hoping to cash in on the federal government’s delay in issuing final rules for how to make websites accessible to Americans with disabilities. NAR has learned of real estate brokerages receiving threatening letters claiming that their websites are not compliant with the Americans with Disabilities Act. The law firms that filed the suit often say they would be willing to settle the matter for a small fee.
According to the National Law Review, the number of lawsuits complaining that business websites are not accessible to impaired users is on the rise.
REALTOR® associations operate websites and so could face these allegations even though the courts are split on whether websites currently need to be accessible to people with disabilities.
In a letter to the Department of Justice last year, NAR offered its support for the adoption of clear website accessibility standards and requirements. That letter also urged the agency to expedite its rulemaking on this issue since the lack of clear rules has contributed to a growing number of lawsuits. The DOJ, however, has recently “deprioritized” this rulemaking, meaning that clarity on this issue is not likely to come anytime soon.
Here’s where the courts stand today on compliance
Because websites did not exist when the ADA was enacted, website accessibility is not addressed in the statute, and so whether website operators need to comply with the ADA remains an open issue. Two federal courts have recently considered whether the ADA applies to websites and came to different conclusions, showing how this issue remains an unsettled area of the law.
California court says no requirement to comply
In Robles v. Domino’s Pizza, a California federal court ruled that the pizza chain was not required to comply with website accessibility guidelines because the U.S. Department of Justice has failed to issue clear guidance on the accessibility requirements. However, the department has, in some cases, required website operators to comply with an international accessibility standard called the Web Content Accessibility Guidelines.
The lawsuit filed against Domino’s alleged that its website, dominos.com, violated the ADA because it prevented individuals who used screen-reading devices from making purchases and failed to comply with the international guidelines. After the lawsuit was filed, dominos.com began referring people who had trouble accessing the site to a 24-hour phone number.
The court found that it would be impossible for the owner to determine the proper standard for website accessibility since the DOJ had failed to issue website compliance rules. Further, the court also commented that the website user had failed to demonstrate why the chain’s 24-hour phone number did not constitute a reasonable accommodation under the ADA. Because there were no clear requirements for website accessibility, the court dismissed the lawsuit.
Florida court orders website operator to follow web accessibility guidelines
A Florida federal court, meanwhile, ruled that a grocery chain’s website violated the ADA and ordered the website operator to conform the site to the international guidelines. In this case, Gil v. Winn-Dixie Stores, the court found that disabled individuals were unable to download coupons, order prescriptions, or find store locations on the website even with screen-reading software. Unlike the Domino’s Pizza site, there was no phone assistance that could help with these functions.
The court ruled that the ADA required the site to be accessible because the site was “heavily integrated” into the owner’s store locations and operated as a “gateway” to the stores. The court stated that it was not ruling that the ADA required websites to be accessible to disabled individuals, but ADA required accessibility in this instance because of the site’s integration into its physical stores.
As these cases show, the law regarding the ADA’s application to websites remains unclear and attorneys are capitalizing on this uncertainty. In fact, the ADA allows anyone to file an accessibility lawsuit. Plaintiffs are not required to make prior demands to a business before filing suit, and there’s no requirement that the plaintiff be a patron of the business.
How you can protect your association
The good news is that you can protect you association by adding a statement to your website that provides a contact phone number for anyone having difficulty accessing it (see NAR’s statement at nar.realtor/accessibility). Although it’s no guarantee that you won’t become the target of an ADA noncompliance threat, offering some accommodation for disabled users on your site makes it more likely that the lawsuit mills will move on to easier targets.
Next, talk to your website provider about implementing a plan for making your site compliant with WCAG 2.0. Even though compliance may not be the law yet, it is coming, so now is the time to prepare.
To find out where your website stands on compliance, run an accessibility scan of the webpages using a free online tool, such as wave.webaim.org. The report will show areas of the webpage that may not be accessible and recommend a solution. Keep records of your ongoing efforts in pursuit of accessibility and prioritize any content accessibility violations.
If you’re planning a website redesign or upgrade, chose a vendor that can create compliant pages. Additionally, associations should follow the progress of the DOJ rulemaking, as eventually it will issue guidance for ADA website compliance.
Talk to your members about ADA compliance
REALTORS® typically have an abundance of contact information on their websites and may prefer that home buyers and sellers phone them to explore listings and selling strategies. Nevertheless, it’s in members’ best interest to also post a clear accessibility statement offering direct assistance to anyone unable to take advantage of the services, including home search, offered on their websites.
The National Association of REALTORS® provides up-to-date resources on complying with the Americans with Disabilities Act (ADA) at nar.realtor.
Pending legislation aims to curb ADA-related lawsuits
Lawmakers in both the Senate and House proposed legislation called the ADA Education and Reform Act of 2017 to reduce the number of lawsuits filed by requiring plaintiffs to give businesses written notice of the alleged violations and an opportunity to address them before filing suit. The legislation stalled in Congress but is expected to gain new momentum with the current administration. Opponents of the measure say it would create new hurdles for citizen enforcement of the Act and weaken its effectiveness.