What is this about Website ADA Compatibility?

October 19, 2021 | Category: ADA Website Compliance, BPE Newsletter

What is this about Website ADA Compatibility?

By: D. Keith Dunnagan, Esq.

October 19, 2021

You may have heard rumors about the necessity of ADA compliance related to websites. More importantly you may be asking yourself is this real and should I be worried. The short answer is: yes, it is real, and you should be checking on your compliance. In 1990 the Americans with Disabilities Act was signed into law by George H.W. Bush with purpose of increasing access to commercial facilities for the disabled and thereby reducing discriminatory impacts against the disabled based on accessibility.

For many years, ADA litigation focused on access to brick and mortar stores. Much of the litigation involved accessibility so that individuals with a disability were not denied or deprived of the opportunity to engage in commercial activity, unless there is a significant difficulty or expense in compliance. However, as more and more commercial activity has transferred to web-based platforms, new liability exposure has been created. In California, in addition to the ADA, businesses must also comply with the requirements of the Unruh Act, which in pertinent part prohibits the discrimination against all individuals based on disability or medical condition, along with a host of other characteristics. Further, current regulations require that businesses be compliant with the effective communication requirements that “visually delivered materials be available to individuals who are blind or have low vision.”

Here unfortunately, is where the law gets sticky. In general, the case law supports the notion that websites and mobile apps are not places of public accommodation and the Robles v. Dominos decision supports that contention. However, the court went further and states that “where a ‘website and app facilitate access to the goods and services of a place of public accommodation’…the ADA covers the website…”. Robles, 913 F.3d at 905. What this means is that websites used to promote the services of real estate professionals will likely be subject to ADA compliance requirements. While most of your work may be done on the phone or from your car, you still have an address (through your broker) where you technically provide services. Those physical locations that engage in the public commercial sphere create the requirement to comply with the ADA requirements.

The question that follows is how could a website potentially violate the ADA requirements? There are a number of ways, but as the market goes to a more web-based model think about virtual showings. Many of these are simply videos showing the property. If you have a hearing-impaired person, watching are the descriptions shown with a closed caption so the hearing-impaired individual can read how the property is being described. Or maybe an individual with a visual impairment needs to have an auditory description of what is being shown in the virtual showing. Maybe additional technologies need to be included to enhance the function of the website for those who are unable to use a mouse or keyboard. There are innumerable ways in which a website could be found to be non-compliant and raise the potential for liability.

The cost of non-compliance can be significant. Between the ADA and the Unruh Act, a company found liable for non-compliance can be subject to injunctive relief (an order requiring compliance), monetary penalties of up to $4,000 per violation, plus plaintiff and defense attorney’s fees. It can get very expensive, very quickly.

While this can seem daunting, one can start to work on compliance before claims rear their ugly heads. You can begin to employ digital assistive technology like closed captioning, audio captions, and ensuring your website is designed for screen-reader accessibility to name a few. Additionally, you should work with your webmaster to make sure that your website is compliant with the Web Content Accessibility Guidelines. Simple steps to increase accessibility will become the norm. As more and more commerce is taking place on web it is only natural that compliance with accessibility requirements will only become more prevalent.

The information presented in this Article is not to be taken as legal advice. Every person’s situation is different. If you are facing a legal issue of any kind, get competent legal advice in your State immediately so that you can determine your best options.

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