Kenneth Harney
It hasn’t gotten much public attention, but here’s something that has the real estate brokerage industry upset: A sudden wave of potentially costly and embarrassing legal challenges to companies’ websites, alleging violations of the federal Americans with Disabilities Act.
Lawyers representing visually impaired, hearing-impaired and other clients say the vast majority of realty sites don’t offer features needed to allow handicapped individuals to shop for homes and absorb content like other visitors. These include alternative texts accompanying images, transcripts for audio-visual content, descriptive links and resizable text and a variety of others.
Attorneys at one firm alone – Carlson Lynch Sweet Kilpela & Carpenter LLP in Pittsburgh – have sent out as many as 25 so-called “demand letters” to realty and home building companies in recent months. The letters threaten lawsuits if the firms do not agree to modifications of their sites, plus the prospect of hefty financial penalties.
Benjamin J. Sweet, a Carlson Lynch partner, says website inaccessibility “is an epidemic in this country” in almost every segment of the economy. He added that his firm has “more than 100 clients in 40 states” who either have been plaintiffs in various suits or are being represented through demand letters. Sweet declined to identify specific realty brokerages, citing the potential for litigation. Other law firms reportedly are gearing up legal attacks – a prospect that has the National Association of Realtors worried enough that it recently pleaded with the Department of Justice to accelerate its timetable for releasing long-awaited guidance on the standards that commercial websites must meet to be compliant with the disabilities law.
In a letter to the head of the Department of Justice’s civil rights division April 29, Tom Salomone, president of the Realtors group, said the “lack of federal regulation governing website accessibility” has “left our members confused about how to mitigate legal risks in this area or what is even required of their websites” under the law. In the meantime, “plaintiffs are using the ADA (Americans with Disabilities Act) to demand restitution from businesses.”
The Justice Department, which had been expected to release proposed rules this year, instead postponed them until fiscal 2018. In the meantime, real estate companies say, they are in the dark on precisely how to make their websites accessible to disabled persons.
Expanding Issue
This issue extends far beyond real estate sites. For years, there have been lawsuits filed against prominent firms and organizations alleging website violations of the disabilities law. Target Corp., Hard Rock Cafe, Home Depot and dozens of other retailers have been sued or have entered settlement agreements. Major cases are pending in Massachusetts against Harvard and MIT for alleged failures to provide adequate captioning on audio and audiovisual material in their websites. Those suits were filed by the National Association of the Deaf.
The focus on realty firms is new and, in the opinion of some companies, unfair given the absence of regulatory guidance. Matthew Rand, managing partner at BHG Rand Realty in Westchester, New York, says that while his firm has not been a recipient of a demand letter over its website, “obviously we want to make our site work for everybody.” However, he is uncertain about what is expected given the dearth of “clear communication” from the government.
Alisa N. Carr, a partner specializing in disabilities issues at the Leech Tishman law firm in Pittsburgh, says the lack of regulations “makes it difficult for my clients who want to comply with the law.”
But Sweet says that in several settlements and statements, the Justice Department has made clear that owners of websites need to base their modifications on a widely-recognized Web Content Accessibility Guidelines standard published by the World Wide Web Consortium. “It’s no secret” the department favors this, he said, and the businesses and groups who claim they can’t act until the department finalizes its rules are “shedding crocodile tears.”
Several major real estate companies I contacted, including Long and Foster, the country’s largest independent brokerage, and Redfin, declined to comment on whether they have received demand letters regarding their websites. Other firms, including RE/MAX, Keller Williams and Better Homes and Gardens, said they have not been targeted to date. RE/MAX said it had launched a new website last month whose designers assured the firm that “we shouldn’t have any issues,” said spokesman Shaun White. One RE/MAX broker in Florida confirmed that “ADA issues” are “popping up” in the state but provided no names of targets.
