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03.03.20

Housing accessibility claims come to the internet

BY , , Harry J. Kelly

There is a new wave of legal claims against owners and managers about access to housing. Claimants are alleging that housing websites are not accessible to persons with hearing and visual impairments. Taking steps to avoid being a target or, if needed, having a vigorous defense is important.

Three sources of federal law are key to these claims:

  1. The Fair Housing Act (FHA). The federal FHA prohibits any organization from discrimination in housing on the basis of any protected class (race, sex, nationality, political affiliation). Advertising (such as through websites) that is not properly presented could make housing less available and limit housing choice.
  2. Section 504 of the Rehabilitation Act of 1973 (Section 504). For federally assisted housing providers, Section 504 requires “recipients of federal financial assistance to take appropriate steps to ensure effective communication with applicants, beneficiaries, and members of the public.”
  3. The Americans with Disabilities Act (ADA). Title III of the ADA relates to places of public accommodation. In recent years, parties have contended that websites that are not accessible to persons with hearing and visual impairments violate the ADA’s protections. So far, three lines of cases have developed under the ADA. First, certain courts take the position that the ADA applies to all commercial sites, including websites. Second, other cases provide that there must first be a “nexus” or connection to a physical location that a person may seek to access or learn more about. In such a case, the website is treated as an extension of that physical space. The third approach is that the ADA applies only to physical access. The US Department of Justice (DOJ) was considering new regulations expanding and clarifying Title III of ADA relating to communications but withdrew that effort in late 2017. Based on a 2018 letter, the DOJ has taken a “flexible” position, that until there are rules, public accommodations have flexibility to comply with ADA. The DOJ and related commentary point to meeting standards like W3C Web Content Accessibility Guidelines (WCAG) 2.0. The WCAG continues to advance its guidelines and is now up to 2.1.

What you can do:

  • A website that is not accessible to persons with hearing and visual impairments is a ripe target for a lawsuit; a website that makes even modest accessibility enhancements is less likely to attract a lawsuit.
  • Treat any published communication as a covered ad—even community chats, etc. This is especially important in social media postings. If posted one place, you may have to post elsewhere, so the same content is generally available.
  • Have good contact info on the website and trained staff available for follow up if issues arise.

While the prime focus on the ADA is compliance through injunctive relief, civil penalties can be recovered by the Justice Department, and the FHA allows private parties to recover damages also.

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Richard Michael Price

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Tatiana E. Gutierrez

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Harry J. Kelly

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