In recent years, there has been a spate of litigation relating to website accessibility under the Americans with Disabilities Act (ADA). The ADA provides that no person shall be discriminated against in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of public accommodation. These requirements clearly apply to public accommodations such as stores, hotels/motels, movie theaters, etc; all such places must be accessible to people with disabilities.
The lawsuits relating to website accessibility allege that when businesses fail to make their websites accessible to individuals with visual impairments, it is a violation of the ADA. People with visual impairments rely on screen-reading technology to access information on the Internet. Such technology reads aloud the information on a website. However, in order to use this technology, websites must be coded in a way that allows the information to be translated into meaningful text. If a website does not utilize this code, it will be inaccessible to persons with visual impairments.
This is an evolving area of law, and there has been no clear consensus by the courts as to how this will go. In fact, it is not yet clear that the ADA even applies to commercial websites. The business community takes the position that the ADA applies only to physical locations of business – not their websites. However, in several recent cases, the courts have ruled against retailers, refusing to dismiss ADA claims regarding website accessibility.
- An Ohio court refused to dismiss an ADA website accessibility lawsuit against Jo-Ann Fabrics, a company that sells fabric and other merchandise at its stores and through its website. In the suit, a blind customer alleged that she was unable to access information through the company’s website because it was not compatible with screen-reading technology. The court refused the Company’s request to dismiss the case, rejecting the claim that the ADA applied only to physical locations and not the Internet (Castillo v. Jo-Ann Stores, LLC, Ohio, February 2018).
- Andrews v. Blick Art Materials, LLC, New York, December 2017 – in this case, the court approved a settlement against a retailer that sold art supplies online and in its stores. The complaining shopper, who is legally blind, alleged that the retailer discriminated against him based on his disability because he was unable to use the company’s website to buy art supplies, when non-disabled customers were able to do so. The court had previously refused to dismiss the case, leading to the settlement.
So far, no complaints have been files against the multifamily housing industry, but the cases that have been filed are a warning shot across our bow. In 2017 and so far in 2018, hundreds of lawsuits have been filed over the lack of website accessibility and more are coming down the road.
It is not inconceivable that communities could face ADA claims based on website accessibility. The ADA applies to public spaces, which include apartment leasing offices and parking lots, since we invite the public to these spaces. In the 21st Century, much of the information the public obtains about rental properties is from the web, and community websites are a go-to resource for many people looking for housing. These sites include pricing information, floor plans, location maps, photos and videos. If a website does not meet accessibility standard, it is not accessible to individuals with vision impairments, which could lead to an ADA claim.
It is worth noting that as far back as 2010, the Justice Department pledged to issue ADA guidelines on website accessibility, but so far has not done so. The only guidelines that have been issued apply to government entities. There is nothing to indicate that the current Justice Department intends to issue guidance, so as an industry, we are pretty much on our own.
Based on this new area of litigation, it is recommended that owners and management companies begin researching the issue and make a determination of what it will take to make websites accessible. The industry standard at this point is the Web Content Accessibility Guidelines 2.0 (WCAG 2.0). These standards, published by a working group of experts, have been widely accepted as providing full and equal access to people with disabilities by a long list of countries, state and local governments, and companies.
So – just one more issue to be concerned about. Being proactive, and looking into this now rather than later, may be worthwhile for owners and managers in the multifamily housing industry.