IN 1990, Congress passed the Americans with Disabilities Act (ADA), with the aim of providing equal access and protection to millions of Americans living with disabilities. Title III of the ADA requires that public accommodations and commercial facilities provide adequate accessibility to disabled persons. This requires businesses to conform to regulations and standards dictating how new facilities should be constructed, and how existing ones must be altered to achieve the required conformity. Brokerages that maintain physical office spaces must comply with Title III in order to avoid vulnerability to lawsuits.

For many years, businesses have focused on the physical requirements of Title III. However, as more commerce has shifted online, websites have become intrinsic to transacting business. These online spaces have become the next frontier of Title III compliance.

There is no explicit provision in Title III, or anywhere else in the ADA, addressing online spaces. But recently, the Department of Justice (“DOJ”) proposed regulations that would create some Title III accessibility rules for company websites. Thus, it is increasingly important for companies to provide adequate accessibility to both their physical and online business spaces.

Title III guarantees people with disabilities the “full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation.” These regulations involve “surmounting whatever physical barriers may exist, but also [ensuring] that the eligibility criteria for participating in the site’s activities do not screen out people with disabilities, and the public spaces may not bar individuals with disabilities from enjoying the benefits and privileges available at the site.”

Construction standards for accessibility can be found in the ADA Standards for Accessible Design (which can be accessed through the ADA government website www.ada.gov), and were updated as recently as 2010. Specific regulations governing accessibility to public accommodations can be found in Title 28, Part 36 of the Code of Federal Regulations. Such accommodations can include, but are not limited to:

•    Installing ramps and ensuring that curbs are ramped
•    Widening doors and walkways to allow for wheelchair access
•    Installing accessible door hardware
•    Creating designated accessible parking spaces
•    Removal of obstructing furniture or other objects that block access to areas such as restroom facilities.

While Title III regulations have undoubtedly provided much-needed accessibility options to millions of disabled Americans, the ADA, since its inception, also has triggered an increasing tidal wave of litigation. Companies with physical spaces frequently have been the subject of lawsuits resulting from building specifications that fail to comply with ADA standards, even for minor compliance issues. Since Title III permits the collection of legal fees, this has created a cottage industry for attorneys who visit properties looking for easily missed accessibility violations, such as the height of door handles, improper signage, or poorly marked handicapped parking spaces.

Further complicating the matter is the lack of a “notice-and-cure” provision. This means that the property owner is not given a reasonable amount of time to remedy the infraction before a suit can be brought. In his City Journal article, The ADA Litigation Monster, author Mark Pulliam explains that when a property owner receives a demand letter, the options are either to “pay a sizable settlement and correct the violation, or go to trial.” The costs of defending this type of lawsuit often “can add up to a hefty bill,” Pulliam says. Furthermore, he adds, “courts have held that any member of the public can bring Title III claims, including ‘testers’ who are not even patrons of the allegedly noncompliant business.” As of 2016, Pulliam notes, more than 26,000 ADA claims were filed each year.

With the advent of new technologies, the scope of Title III will continue to broaden to include online space. In 2010, the DOJ issued a Notice of Proposed Rulemaking to potentially revise Title III by establishing compliance parameters for public accommodations via the internet. While the DOJ has not yet issued new rules or revised Title III, it has published Web Content Accessibility Guidelines (WCAG 2.0). These non-binding guidelines provide a framework for making websites adequately accessible, similar to what could be required if the ADA is extended to regulate online spaces. Online content publishers can utilize WCAG 2.0 (found on the ADA government website, www. ada.gov) to ensure that their websites and other online content conform to the overall ADA mission of providing sufficient accessibility to all.

WCAG 2.0 is based on four main principles, instructing companies to ensure that their websites are perceivable, operable, understandable, and robust. These principles suggest that information and operation of a website’s user interface must provide clear language, and be robust enough that it can be interpreted reliably by a wide variety of user agents, including assistive technologies.

Given this uncertain landscape, what can business owners do to protect themselves from a Title III lawsuit? While the DOJ has yet to release regulations governing website accessibility, consent decrees reached between the agency and some companies do provide guidance.

Consistent in these consent decrees are two requirements: (1) that the company’s website contain an accessibility statement which provides an alternative method of communicating with the company either via email or via phone. An example of this can be found at www.nar.realtor/accessibility; and (2) that each company provide training to at least one staff person to respond to accessibility concerns raised by website users.

There also is consensus that if a business has the means to do so, the best step is to hire a digital accessibility expert to perform a website audit, and consider needed accessibility improvements. Affordable alternatives may include web-based accessibility evaluation tools. However, these programs are fairly rudimentary and may not provide accurate assessments.

Absent a full compliance review, initial steps toward WCAG 2.0 compliance can include, but are not limited to:

1.    Adding text equivalents to every image on the site. This includes text stating the names and positions corresponding to any pictures of staff
2.    Making sure that any documents, including fillable forms or articles, are uploaded in a text, rather than PDF format, or providing a text alternative to the PDF
3.    Allowing users to control the font size and colors on the site through their browser settings or operating systems
4.    Providing keyboard accessibility
5.    If posting videos to the website, providing captions (or a transcript) and audio description of the video
6.    Avoiding or minimizing blinking and flashing features
7.    If the website contains pages that time out, ensuring that this feature can be turned off.

Taking these steps towards website accessibility not only benefits the community at large, but also demonstrates to “drive-by” plaintiffs a commitment to comply with WCAG 2.0 guidelines.

The varied and complex ADA Title III regulations make it difficult for a business to achieve full compliance. The combination of complex regulations and a fast-track litigation process has seen Title III claims skyrocket since the regulation’s inception 27 years ago. While ADA compliance litigation has yet to find traction in the online sphere, brokerages should take steps to make websites accessible in accordance with WCAG 2.0 in anticipation of a likely regulatory expansion.