Many real estate professionals have become increasingly concerned about the lack of guidance from the Department of Justice (DOJ) with respect to a business’ obligation under the Americans with Disabilities Act (ADA) to make its website accessible. The business community anticipated a rule in the spring of 2016, but was disappointed by the DOJ’s announcement that a final rule will not be issued until sometime in 2018.
In the meantime, courts around the country have been asked to resolve the question of whether the ADA’s accessibility obligations extend to a business’ online presence. This has created split opinions among the various circuits. DOJ enforcement actions, as well as demand letters and complaints filed by private litigants, are contributing to confusion from this de facto rulemaking and uncertain state of the law. A number of demand letters, which include the threat of litigation, have been sent on behalf of individuals with disabilities, alleging that business websites are inaccessible and in violation of the ADA. The lack of federal regulation governing website accessibility has encouraged these lawsuits, leaving real estate professionals confused about how to mitigate legal risks in this area.
Without a clear path to compliance, plaintiffs are using the ADA to demand restitution from businesses. Some states and local governments have even started enacting their own laws related to government agencies’ website accessibility. If there’s a rise in state and local requirements regarding website accessibility for businesses, along with the varying court opinions on the issue, it could subject businesses to inconsistent rules across jurisdictions.
So what can you, as a business owner, do to get ahead of this issue? You can review the “Web Content Accessibility Guidelines 2.0,” which were developed by the World Wide Web Consortium to help developers and site managers make the Web more accessible. Contact your website provider and ask what’s being done to create or improve accessibility and how to ensure ongoing compliance with the guidelines. If you operate your own website and don’t have the technical expertise in-house, consult an expert who specializes in creating and maintaining accessible websites.
In their settlement orders, the DOJ has generally allowed businesses up to 18 months to implement accessibility changes to their sites. Educate and train relevant personnel to ensure they’re knowledgeable about and focused on your business’ online accessibility. Technical experts are also available to monitor your website and alert you when a change or remediation is necessary.
You might also consider making it easier for site users who may be disabled to get in touch. Adding contact information for someone at your business who can respond to a particular user’s inability to access the site, or a portion of it, is a proactive step you can take to address site accessibility issues. A simple feedback form is another tool to help users inform you about what accessibility features may need to be improved or added. With more and more business being conducted over the Internet, getting out in front of the online accessibility issue is a smart business decision. Not only can it help you avoid legal risks down the road, but it also establishes your business as accessible to all, and may enhance your reputation and even your bottom line.
In response to member concerns about website compliance with the ADA, the National Association of REALTORS® is monitoring this issue and sent a letter to the DOJ. For more information, please visit www.realtor.org/videos/window-to-the-law-accessible-websites-and-the-ada.
This column is brought to you by the NAR Real Estate Services group.
Sarah Young is the director of Real Estate Services for the National Association of REALTORS®.
For more information visit www.realtor.org.
