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Real Estate Firm Websites Becoming Targets Over ADA Compliance

By Chad M. Poznansky, Paige M. Krause / Jun 07, 2016

If you are a "place of public accommodation," you are required to comply with the Americans With Disabilities Act (ADA) standards. "Places of public accommodation" are not just restaurants, office buildings or shopping centers anymore. In a world where internet usage for business and shopping is the norm, the definition is broadening. The U.S. Department of Justice has long taken the position that websites are places of public accommodation under Title III, the section of the ADA that applies to businesses. In 2010, it issued an Advance Notice of Proposed Rulemaking on the matter and it has caused significant headaches for businesses that rely heavily on the internet, specifically, the real estate brokerage industry.

According to Realtor Magazine, over 90% of people looking to purchase or sell real estate begin their search on the internet and over 61 million people visit realtor.com, Zillow, Trulia and Redfin each month alone, with websites of independent brokers and sales associates adding millions more monthly views. Consumers with disabilities such as visual and hearing impairments have started to bring legal actions against real estate companies because their websites do not offer features needed to allow disabled consumers to shop for homes or investment properties like other visitors. These websites typically do not offer accessibility features such as closed captioning or resizable text.

Although the DOJ's regulations specific to websites are not expected until 2018, an accumulation of case law uses Title III of the ADA to argue that a business's ADA obligations extend to its website. According to the Chicago Tribune, one Chicago-based law firm has already sent out 25 demand letters related to website inaccessibility to real estate companies in recent months. These demand letters threaten lawsuits if the companies do not agree to modify their websites to make them more accessible to those with disabilities and failure to comply could mean huge financial penalties. Currently, the maximum penalty is $75,000 for a first time violation of the ADA and $150,000 for subsequent violations.

Now is the time to start thinking of more than just hand rails or ramps to make your brick and mortar shop handicap accessible. In addition, you should be considering implementing coding compatible with web reading software, descriptive links and voice-overs for your website, among other features. The DOJ has relied on the guidelines and standards of the U.S. Access Board, a federal agency promoting equality for people with disabilities, in mandating ADA compliance for websites. Clark Hill is familiar with these guidelines and can help evaluate your website to manage your risk from potential liability under the ADA. We can identify where your website fails to comply with the ADA, recommend changes to make your website more handicap accessible, and work with your website providers to implement the changes. With guidelines and standards evolving and the DOJ's regulations slowly approaching, Clark Hill will stay informed on new content and website feature requirements that may arise and will help your business maintain ongoing compliance with the ADA. Not only will this save your business from liability under the ADA and prepare you for the DOJ's regulations to come, but it will also provide for an opportunity to broaden your client base.

If you have any questions about the subject matter of this e-alert, please contact Chad M. Poznansky at 312.985.5531 | cpoznansky@clarkhill.com or Paige M. Krause at 312.517.7507 | pkrause@clarkhill.com.