In recent years, and trending more frequently as of late, we have heard about businesses, big and small, receiving demand letters
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The ADA
Many of you undoubtedly
know that Title III of the ADA requires places of public accommodation (private
businesses open to the public) to remove barriers, if achievable, to allow
access to people with disabilities. Often, we think of physical barriers, like
stairs, that can prevent people with mobility impairments from accessing brick
and mortar businesses. In a world that is increasingly digitized, particularly
post-pandemic, the barriers to accessing goods and services are not just
physical. The DOJ has published guidance which explains that websites offering
goods or services to the public (to consumers) are “places of accommodation” as
that term is used under the ADA and thus private businesses have an obligation
to remove web accessibility barriers. The DOJ’s guidance on website
accessibility can be found here.
The DOJ has indicated that ensuring accessible digital content and
communication so that more people can access, navigate, use, and interact with
web-based content and tools is a priority.
Website accessibility
impacts a wide range of people, including those who have a visual, hearing, or
cognitive impairment along with people with a disability that prevents them
from grasping a mouse and therefore engage in web content through screen
readers or keyboard navigation. The DOJ explains, for example, a website may
not be accessible if the website does not have appropriately sized text,
sufficient color contrast, lacks text alternatives on images, has inadequate
video captions, has inaccessible online forms, or uses mouse only navigation. If
a website is not accessible, a person with disabilities may not have access to
information or programs, or may not be able to transact for goods and services.
Under the ADA, the DOJ
has enforcement powers to require a business to remediate a website
accessibility issue and to comply with the guidance it has set forth. Further
the ADA provides people with disabilities private enforcement rights that
include the ability to recover legal fees associated with such a claim. This
has resulted in some serial litigants sending generic demands to businesses to
try to force a settlement because their website is not accessible.
For those businesses
subject to the ADA, it is important to have regular accessibility compliance
audits. Businesses may also want to review any website operator and/or website
provider agreements to see if there is an opportunity to shift responsibility
for ongoing ADA website compliance.
How does ADA compliance
affect developers, realtors, managers, and community associations?
·
If a developer creates a property website
to market the community and units to the public, that property website would be
subject to the ADA.
·
If a broker has a website to market the
community and units to the public, that property website would be subject to
the ADA.
·
If a property management company operates
a website that offers services to the public, including associations, that
website would be subject to the ADA.
But what about a
community-run association website? Community associations that are not open to
the public and do not offer services or goods to the public are not subject to
the ADA. The picture may become more complicated if the community website posts
advertisements for rentals or sales, but typically the ADA is not applicable.
Nonetheless, the story does not end here.
The Fair Housing Act
Federal and State Fair Housing
Laws prevent housing providers from discriminating against people with
disabilities in the sale, rental, finance, or in the terms and conditions of
housing. So, how does the FHA come into play?
There are no regulations from HUD on website accessibility and we are
aware of no controlling court decisions under the FHA concerning community
association website accessibility. Even so, it is easy to see how an
association could receive a reasonable modification request, in accordance with
state and federal fair housing laws, that changes be made to a community
website to render it accessible so that residents with disabilities can have full
access to housing services/benefits. Housing providers have an obligation to
make reasonable modifications and, in the case of buildings with ten or more
units, to pay for those modifications. While it would no doubt involve some
expenditure to provide accessibility updates to digital content, it would likely
be difficult for a housing provider to deny the modification on the grounds
that it would constitute an undue financial or administration burden. More and
more, condominium documents, notices, information on facilities, programming, maintenance
requests, and fee payment all occur online. People with certain disabilities
may not have the same access and opportunity to interface with the community
website and these features if a website is not accessible.
Associations may be well served
to have an audit performed on their websites to ensure that their digital
communications, information, forms, and platform are accessible to all
residents. Associations should also be prepared to respond to modification
requests concerning website accessibility if their current website has barriers
for people with disabilities.
Kate is an associate in
the Boston and Quincy-based form of Moriarty Bielan & Malloy LLC. A member of the REBA Condominium Law &
Practice Section, she possesses years of experience in condominium and real
estate litigation and recognized expertise in fair housing, affordable housing
and the myriad of statutes and regulations which apply. In her litigation
practice, Kate has handled complex transitional litigation including phasing
disputes, construction defect claims and related matters. She can be contacted
at kbrady@lawmtm.com
