LEGAL CORNER: The Americans With Disabilities Act: Does it Apply to Broker Websites?
John Dolgetta, Esq. | October 2016
In 1990, the Americans with Disabilities Act, as amended in 2008 by the enactment of the Americans with Disabilities Act Amendments Act, (collectively, the “ADA”) was enacted to protect the rights of persons with disabilities. The ADA’s general rule provides, “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” This article focuses on the current state of the law and whether websites or mobile applications (or “apps” as they are commonly referred to) are considered to be “place(s) of public accommodation.” The National Association of Realtors has published several articles regarding this topic and it is clear the legal landscape has been changing and will soon be changing again. (See http://bit.ly/2d7wYhw).
When the ADA was enacted in 1990, and even when it was amended in 2008, it did not specifically address whether websites or apps are “places of public accommodation,” which would fall under its scope. However, in light of the position that the Department of Justice has taken and in light of various court decisions, websites and apps have been and can be construed as “places of public accommodation.” Real estate professionals should be aware of the possible ramifications this may have on their businesses. Websites and the Internet have become an integral part of the real estate industry. An understanding of the current state of the law is crucial.
An Overview of the ADA
The ADA provides that any “private entity” must comply with the ADA. A “private entity” includes, among others, “a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment.” While a real estate brokerage firm is not specifically listed, it would fall under the catchall phrase: “other service establishment.”
There are general prohibited activities covered under the ADA. This article will highlight two specific activities, although there are others. One covered activity is known as a “Denial of Participation.” The ADA provides that “It shall be discriminatory to subject an individual or class of individuals on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements, to a denial of the opportunity of the individual or class to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of an entity.” In essence, this means that if a business’s “place of public accommodation” does not allow “individuals or a class of individuals,” which the ADA defines as “clients or customers of the covered public accommodation that enters into the contractual, licensing or other arrangement,” to participate or benefit from the services offered by the business, it is or would be a violation of the ADA.
Another prohibited activity is known as “Participation in Unequal Benefit.” The ADA provides that “It shall be discriminatory to afford an individual or class of individuals, on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements with the opportunity to participate in or benefit from a good, service, facility, privilege, advantage, or accommodation that is not equal to that afforded to other individuals.” In this instance, the ADA focuses on the unequal treatment of and/or provision of unequal benefits to individuals and class of individuals with disabilities compared to those without a disability. Therefore, if it is easier for a person without a disability to have access to a “place of public accommodation,” such as a website or app, it would be considered discrimination.
Are Websites Considered to be ‘Places of Public Accommodations’ in the Courts?
In 2006, the National Federation of the Blind sued Target Corporation (see Nat’l Federation of the Blind v. Target Corporation, 452 F.Supp.2d 946 (2006)), under the ADA claiming that Target’s website discriminated against persons who were blind because it was not accessible and therefore, claimed it was a violation of the ADA. Basically, the court found that if the website was an extension of the business of the website operator or owner (i.e., that goods and services are provided to customers and clients on the website), it could be considered to be a place of public accommodation. Although the case was eventually settled, the court did provide a very useful analysis still used today.
The federal courts, however, are split on the issue of whether websites are “places of public accommodation.” In an article in Thompson’s ADA Compliance Guide (Volume 25, No. 9, September, 2014), author Frank C. Thomas, Jr. explained that the Ninth Circuit has held that a “place of public accommodation” must be a physical place and not a website in cyberspace. However, the First, Second and Seventh Circuits have held that the ADA does apply to websites and that a “place of public accommodation” includes physical locations as well as websites. (See http://bit.ly/2dWrVOu).
The Department of Justice
The DOJ, in contrast to some of the court decisions, has made it clear that websites and apps are indeed “places of public accommodation” and that the ADA does apply. In the spring of 2015, the DOJ issued a statement wherein it proposed revisions to the regulations that implement Title III of the ADA (which is the specific provision that deals with places of public accommodation and how they are regulated). It was expected that the DOJ would issue new rules by the spring or summer of 2016, however, no new rules have been promulgated as of yet.
The DOJ’s objective is to “address the obligations of public accommodations to make goods, services, facilities, privileges, accommodations, or advantages they offer via the Internet, specifically at sites on the World Wide Web (Web), accessible to individuals with disabilities.” The DOJ went on to explain that,
“The Internet as it is known today did not exist when Congress enacted the ADA. Today the Internet, most notably the sites on the Web, plays a critical role in the daily personal, professional, and business life of most Americans. Increasingly, private entities of all types are providing goods and services to the public through websites that operate as places of public accommodation under Title III of the ADA. Many websites of public accommodations, however, render use by individuals with disabilities difficult or impossible due to barriers posed by websites designed without accessible features. Being unable to access websites puts individuals with disabilities at a great disadvantage in today’s society, which is driven by a global marketplace and unprecedented access to information. On the economic front, electronic commerce, or “e-commerce,” often offers consumers a wider selection and lower prices than traditional “brick-and-mortar” storefronts, with the added convenience of not having to leave one’s home to obtain goods and services.”
The new regulations are now expected to be issued within the next few months. It is, therefore, important for brokerage firms, brokers and agents to be aware of what the potential ramifications of these new regulations will be on their business and what they may need to do in order to comply with them. It is also important to note that even though the DOJ has not yet issued these new regulations, liability is still a real concern in light of the recent court decisions.
How Should Brokers, Agents Prepare?
Since the courts have not been consistent in holding whether or not the ADA applies to websites and since the DOJ has yet to issue any new rules—why should anything be done at all? Why not wait and see? The answer is simple—because it is clear that the issue is not if new regulations will be issued, but when. Therefore, it makes sense for businesses to be proactive rather than take a wait and see approach. As is evident from the lawsuits that have been filed and the various federal courts holding that websites and apps are covered under the ADA, the risk is very real.
An interesting article published in the Technology Law Source provides a useful outline of what website owners should focus on when determining what they will need to do to make their websites complaint with the ADA. Again, to be clear, there are no specific guidelines under the ADA, however, the authors recommend that website owners and managers begin to consider doing the following:
“1. Review WGAC 2.0 for details about making websites accessible across a variety of ADA-covered disabilities, including blindness and low vision, deafness and hearing loss, learning disabilities, cognitive limitations, limited movement, speech disabilities and photosensitivity.
2. Mirror terms set forth in recent settlement agreements such as those in the edX Inc. agreement.
3. Consider hiring a third-party consultant to conduct a thorough website audit to establish what features might be lacking and develop a roadmap for implementing necessary updates.”
The Settlement Agreement referenced above between the United States government and edX, Inc. provides detailed “non-discrimination requirements” for the website platforms as well as mobile applications. It also provides detailed and extremely useful information and guidance on the following areas: “Website Conformance Guidelines,” “Website Accessibility Policy,” “Website Accessibility Coordinator,” Website Accessibility Consultant,” “Bug Fix Policies,” “Guidance for Content Providers,” “Training,” “Website Accessibility Evaluation,” as well as other information.
It is clearly not going to be easy or inexpensive for brokerage firms and agents, which own or who operate websites, to make the appropriate changes that the DOJ and the ADA will require. However, if the regulations are eventually changed, or if someone or some firm is sued by a plaintiff and a court holds that the ADA does indeed apply, the penalties, damages and legal fees arising from non-compliance could be severe. ADA compliance is on the horizon and the industry should be proactive in dealing with this very real and important issue.
Editor’s Note: The foregoing article is for informational purposes only and does not confer an attorney-client relationship.