Five Things to Know about Website Accessibility and Discrimination Claims
1. ADA website compliance is important! More and more, we have come to rely on obtaining information, goods, and services online. With a growing number of aging people and persons with disabilities, it is important for both business and legal reasons that companies provide reliable website access to all visitors. The Americans with Disabilities Act (“ADA”) prevents discrimination against persons with disabilities and requires businesses to take steps to ensure disabled persons have equal access. This means businesses must provide reasonable accommodation when a disabled individual needs it, unless there is significant difficulty or expense.
California and federal courts, and the Department of Justice (“DOJ”) have stated that companies must modify their websites as a reasonable accommodation, to increase accessibility. Even though the law is not completely settled on the issue of websites as “places of public accommodation,” it is highly recommended that real estate websites comply with the ADA.
Your real estate website should provide auxiliary aids and services to achieve effective communication, at no cost to disabled individuals. Here are a few examples: captioning audio content (for someone who is hearing impaired), having screen reader software (to assist persons with visual impairments), using clear, easy-to-understand language and common design patterns (for persons with cognitive or learning disabilities). Most government entities and established businesses look to the Web Content Accessibility Guidelines as the leading set of guidelines on this topic, described below.
2. Web Content Accessibility Guidelines 2.1 AA (“WCAG”). Although there is no legal requirement for businesses to implement WCAG standards, courts have referred to WCAG when deciding cases, and ADA defense attorneys recommend that businesses use the WCAG. As technology continues to evolve, we anticipate WCAG will change in the future as well. For now, below is a brief summary of the technical standards under WCAG 2.1 AA that direct your website to be:
Perceivable: Your website content can be perceived in a variety of ways (e.g., adjustable font sizes, closed captioning for videos, adjustable color contrast, photo images have alternative text)
Operable: Your website can be used by a wide variety of users (e.g., it is navigable without using a mouse, doesn’t contain time limits)
Understandable: Information on your website is clear, with easy-to-understand navigation (e.g., contains short and concise statements, foreign language is labeled as such, non-standard terms are defined).
Robust: Your website is robust enough to be accessed reliably by a wide variety of users and is compatible with different types of assistive technology.
3. Potential huge penalties if there’s an ADA violation. If a disabled person wins in court on an ADA violation, the defendant may need to pay thousands of dollars to the plaintiff, in addition to paying for their own defense attorney and corrective actions. A violation of the ADA also is a violation of California’s Unruh Civil Rights Act which protects disabled persons and others in protected classes from discrimination in California.
Under the Unruh Civil Rights Act, a plaintiff can recover statutory damages of at least $4,000 per incident. In addition, plaintiffs can recover money for their attorneys’ fees, seek injunctive relief, and be awarded other civil damages. Separate from the ADA, C.A.R. has heard of plaintiffs claiming fair housing violations based on their inability to access housing information on a real estate website.
4. Proactive steps you can take now. It is important to communicate and work with an experienced IT professional and your website developer to understand the standards being used to make your website accessible and to learn whether additional updates are needed whenever changes are made to your website. Ask about whether there is ongoing site monitoring. Consider using potential tools, such as: testing software, monitoring software, use of overlays or widgets to increase accessibility. Here are more tips:
- Include a statement on your website that states your commitment to accessibility and include contact information for the person(s) in your company who can help a website user who is having difficulties with access (so that individuals can communicate about their specific need).
- Train your staff on how to accommodate disabled persons. Create policies to provide customer support and to respond to individuals who have problems/complaints about accessing your website.
- Remember to budget for ongoing costs to maintain website accessibility.
- Maintain records of your company’s accommodation policies (including your efforts to resolve issues when a website user had a problem).These records may be helpful if you are asked for such information from a governmental agency or asked to provide them for a lawsuit.
5. What should I do if I receive a demand letter or threat of lawsuit? It is stressful to receive a plaintiff’s demand letter accusing you of discrimination against disabled persons and requesting you to pay a large sum of money. In addition to taking the above proactive steps to try to avoid these types of claims in the first place, here are steps you can take in response to a demand:
- Review your website regarding the alleged accessibility problem and take corrective measures.
- Check your Errors & Omissions insurance and other liability insurance policies because there may be coverage for discrimination claims or other applicable insurance coverage to pay for a defense attorney and other claim expenses.
- Consult with an experienced ADA defense attorney. The attorney can help you assess the strength of the plaintiff’s allegations, and the appropriate response. Unfortunately, C.A.R. has learned about “serial plaintiffs” who may not be disabled but who send numerous identical demand letters to various businesses in an attempt to earn quick settlement dollars. An ADA defense attorney can help you evaluate the merits of the plaintiff’s claim and recommend appropriate next steps.
Other resources on this topic. For further reading, C.A.R. has two Quick Guides on this topic: Website Accessibility and ADA Compliance and Website Accessibility
In March 2022, the DOJ issued guidance on website accessibility, found here.