Is Your Website Putting You at Risk of a Disability Discrimination Lawsuit?

Website accessibility is rapidly emerging as the next big thing in fair housing liability.

Like any other consumer-facing business, multifamily housing providers need a good website that online shoppers can use to scope out their product. But while most landlords understand its business importance, many landlords overlook the fair housing risks that come with having a website.

In recent years, there has been a wave of discrimination lawsuits targeting companies of all types, including landlords, for failing to make their websites accessible to persons with disabilities. There were over 4,000 such cases filed in 2021—more than 10 per day. And those totals continue to rise, as do the dollars that companies accused of violations shell out in settlements and damage awards. In New York, for example, settling a website accessibility case will cost you somewhere in the range of $15,000 to $40,000. Website accessibility litigation has become so lucrative that it’s spawned a new cottage industry of trial lawyers who specialize in using software tools to scan the internet to flag websites for accessibility issues that could make for potential targets.

So, in recognition that May is Global Accessibility Awareness month, we’re dedicating this issue to what’s rapidly emerging as the next big thing in fair housing liability. First, we’ll explain the current law of website accessibility. Then, we’ll set out a broad eight-step strategy you can implement to vet your own website against what’s currently recognized as the unofficial compliance standard for accessibility. At the end of the lesson, there are two tools you can use to implement the recommended compliance strategy:

• An audit checklist; and
• A model website accessibility policy.

WHAT IS WEBSITE ACCESSIBILITY?

Website accessibility refers to the extent to which a website is fully usable by persons with disabilities, including those who use assistive technologies like screen readers. In a digital world where so much business and public activity is conducted online, ensuring website accessibility is a compelling concern. Stated differently, inaccessibility puts disabled people at a tremendous disadvantage, forcing them to struggle to apply for jobs, access entertainment, shop online, and, yes, find a place to live.

A 2019 report from the Equal Rights Center (ERC) documents the extent of the problem in the rental housing context. Based on matched-pair testing comparing the experiences of a blind tester and a sighted tester in navigating the websites and mobile apps of 25 different multifamily housing providers, the ERC found that:

• Twenty of the 25 desktop versions of websites tested (80%) and 18 of the 25 mobile versions (72%) provided information that was substantially undetectable by the blind tester;
• With 21 (84%) of the desktop websites and 19 (76%) of the mobile apps, blind testers faced accessibility barriers in seeking to determine unit availability, filtering search results by preferred unit size, and/or learning about rent specials;
• Of the 16 websites that allowed for online rental applications, 13 were inaccessible to screen readers, meaning that blind testers couldn’t use them to apply for a lease unless they got help.

Coach’s Tip: Recognize the barriers to accessibility. Accessibility is about breaking down barriers that prevent people with disabilities from having the same opportunity as nondisabled persons to use a facility, item, or service. Examples of website accessibility barriers include:

• Poor color contrast or use of color alone to provide information may make your site inaccessible to individuals who are color blind or have limited vision;
• Lack of text alternatives (“alt text”) on images, charts, pictures, and illustrations renders them inaccessible to the blind and visually impaired;
• Lack of captions on videos renders them inaccessible to the deaf and hearing impaired;
• Those with disabilities may be unable to fill out, understand, and accurately fill out forms without certain forms of assistance;
• Mouse-only navigation makes content inaccessible to persons who can’t use a mouse and rely on keyboard navigation.

WHAT THE LAW SAYS (OR DOESN’T SAY)

With so much at stake, it might surprise you to know that no federal fair housing laws expressly require landlords to make their websites accessible to the disabled. In fact, they don’t address the issue at all. However, advocates for the disabled have been able to successfully argue that the obligation is implied under fair housing laws. There are four key laws:

1. The Americans with Disabilities Act

The vast majority of website accessibility claims are brought under the Americans with Disabilities Act (ADA), which requires places of public accommodation to meet certain standards of accessibility for visitors with disabilities. Because the ADA predates the internet, the law doesn’t say anything about websites. However, courts have found landlords and other businesses liable under the ADA for not equipping their websites with special technology making the content accessible to people with disabilities. 

To be more precise, federal courts are currently split on whether the ADA applies to a company’s website. Thus, courts in the Third, Sixth, Ninth, and Eleventh Circuits have held that ADA accessibility requirements apply only to physical locations. By contrast, courts in the First, Second, and Seventh Circuits have ruled that the ADA can apply to a website that’s independent of any connection with a physical place.  

The U.S. Department of Justice (DOJ), which enforces the ADA, sides with the latter group, taking the position that the law goes beyond brick-and-mortar locations and requires website accessibility. The difference is that there are no regulations addressing website accessibility under the ADA the way there are with physical buildings. In 2010, the Obama administration said it would promulgate rules on what makes a website accessible but never did. The Biden administration promised to continue the work.

Issued by the DOJ in March 2022, the “Web Accessibility Guidance Under the Americans with Disabilities Act” (the “March 2022 Guidance”) was a major disappointment, listing reasons that website accessibility is important and examples of barriers that make sites inaccessible. What was missing, though, were the crucial details explaining what businesses could do to ensure their sites were accessible. Without definitive guidance, landlords and other businesses remain in the dark on how to comply with the ADA and insulate themselves against liability for website accessibility violations.

2. The Fair Housing Act

Although it doesn’t talk about websites, the federal Fair Housing Act (FHA) makes it illegal “to discriminate in any aspect of selling or renting housing” on the basis of a disability. Specifically, Section 804(c) of the FHA makes it unlawful to “make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on. . . handicap.” This language may be interpreted as applying to a landlord’s website.

Unlike the ADA, which covers just about any kind of business, the FHA applies only to housing. That’s why the ADA remains the weapon of choice for suing retail, universities, financial institutions, restaurants, hotels, publishers, and other industries that the FHA doesn’t cover.

3. Section 504

Section 504 of the Rehabilitation Act bans disability discrimination by landlords that receive federal housing assistance. It also requires recipients of such assistance to provide accessible web content, along with reasonable accommodations for the disabled.

4. State Discrimination Laws

Landlords that don’t provide accessible websites also face the risk of liability under state discrimination laws, which are typically far more stringent than federal requirements. For example, California’s Unruh Act, which bans disability discrimination in “accommodations, advantages, facilities, privileges or services in all business establishments of every kind whatsoever,” is a much greater liability threat than the ADA. California courts have interpreted Unruh as applying to multifamily housing and as requiring covered businesses to make their websites accessible. This is true even if they merely do business in and aren’t located in the state.

Example: A blind customer requiring screen reading software to read and access content on the internet sued an online retailer for an Unruh Act violation. The retailer, who was based in New York, claimed that it wasn’t subject to Unruh and that even if the law did apply, it didn’t cover websites. The California Supreme Court rejected both arguments and allowed the customer to take his case to trial, paving the way for a lucrative settlement [Rios v. New York & Co., 2017 U.S. Dist. LEXIS 190794 (C.C.D. Cal. 2017)].

In addition, a handful of states, including Illinois, Oklahoma, New Jersey, and Missouri, have also passed or are considering specific website accessibility legislation that arguably could apply to multifamily housing businesses.  

HOW TO COMPLY

What a conundrum! If you don’t make your website accessible, you can be sued for disability discrimination under the ADA and other federal and state laws. At the same time, there are no official regulations to definitively explain what you must do to comply or safe harbors you can rely on to avoid getting sued. So, what are you supposed to do?

Luckily, there is an answer. While it doesn’t have the status of law, guidelines created by an international organization called the World Wide Web Consortium (W3C) are universally recognized as the unofficial standard for making a website accessible to persons with visual impairments and other disabilities. Web Content Accessibility Guidelines (WCAG) 2.0 are actually made up of different guidelines, each of which provides for three levels of accessibility, starting with A and progressing in stringency to AA and AAA.

WCAG 2.0 level AA is the unofficial standard of compliance for website accessibility under the ADA, FHA, and other federal and state discrimination laws. Although the DOJ has declined to come out and say this, the federal government has adopted WCAG 2.0 AA as the standard for its own websites. In the March 2022 Guidance, the DOJ refers to it as one of the “existing technical standards that provide helpful guidance concerning how to ensure accessibility of website features.” Moreover, every time the DOJ settles a website accessibility complaint against a private sector company, it makes compliance with WCAG 2.0 AA one of the terms of settlement.

DEEP DIVE

The Business Advantages of Website Accessibility

In addition to avoiding costly litigation, ensuring that your company’s website is accessible to persons with disabilities can significantly help your rental business by:

• Increasing website traffic since more people will be able to access your site;
• Gaining new renters to the extent that the people who are now able to access your site apply for apartments and get accepted as tenants;
• Improving search engine optimization (SEO) and search engine results pages (SERP) rankings since your content will become not only more reachable but also relevant, concise, and simpler to use; and
• Faster page loading speed and improved website user experience, which are the typical results of making a website accessible. 

PERFORM A WEBSITE ACCESSIBILITY AUDIT

Ensuring that your website meets WCAG 2.0 AA criteria gives you the best shot at avoiding liability. While the technical measures required will differ based on your business’ unique website content, architecture, and systems, the starting point in all cases is to have a qualified person with an understanding of WCAG 2.0 audit your current website and mobile apps (which, for simplicity’s sake, we’ll refer to collectively as “website”) to see if it meets the standards for compliance at level AA. There are eight things your website accessibility audit should address.   

Step 1. Audit for Perceivability

To be considered accessible under WCAG standards, web content must meet the principles of POUR:

• P-Perceivable;
• O-Operable;
• U-Understandable;
• R-Robust.

Perceivable means that information and user interface components must be presentable to users in ways they can perceive. In simple terms, users must be able to perceive the information presented. Guiding principle: Content isn’t perceivable if it’s “invisible” to all five of a user’s senses. Compliance strategies:

• Provide text alternatives for non-text content;
• Provide captions and other alternatives for multimedia;
• Create content that can be presented in different ways, including by assistive technologies, without losing meaning; and
• Make it easier for users to see and hear content.

Step 2. Audit for Operability

Operability means that users must be able to operate user interface components and navigation. In other words, the interface and navigation can’t rely on interactions that a user can’t perform, such as mouse-only navigation that a person without the necessary motor skills or appendages can’t use. Compliance strategies:

• Make all functionality available from a keyboard;
• Ensure you’re giving users enough time to read and use content;
• Be aware of the potential for, and don’t use, content that can cause seizures, such as content that flickers, flashes, or blinks, which can trigger photosensitive epilepsy; and
• Use aids that help users navigate and find content.

Step 3. Audit for Understandability

Understandable means that users must be able to understand both the information and user interface operation. Compliance strategies:

• Identify the language(s) that text is written in;
• Identify any unusual words or abbreviations;
• Ensure that content appears and operates in predictable ways;
• Ensure that error messages and correction instructions are clear and easy to read and follow; and
• Include aids or functions that help users avoid and correct mistakes.

Step 4. Audit for Robustness

Robust means that content can be accessed, read, and interpreted reliably by users with assistive technologies such as voice scanners or other agents. Compliance strategies:

• Ensure website content and code are well formed;
• Ensure content written in a markup language such as HTML or XML has complete start and end tags and nests elements correctly to prevent display errors and problems with assistive technologies;
• Ensure user interface components such as form elements have their name and role “programmatically determined” by an assistive technology;
• Ensure people with disabilities can use assistive technologies to set values, properties, and states on your website.
• Ensure content remains accessible as technologies and user agents advance.

Step 5. Perform User Testing

If possible, ask people with disabilities to test your website and evaluate its accessibility. This will enable you to identify problems that you might otherwise have overlooked. Compliance strategies: User evaluation can methods range from informal questions or exercises testing if disabled users can find certain content or use certain functions, such as completing rental applications online, to formal studies analyzing qualitative and quantitative data. User testing is advisable both during initial auditing to benchmark your current compliance and later on to test new prototypes, websites, or improvements based on those initial findings.  

Step 6. Review Key Milestones and Changes

Keep or ask your website developer to keep a record of the accessibility issues that you identify and the steps you take to address them. This will show that you completed the work and, hopefully, achieved an improved level of accessibility. It will also be helpful if you do get sued for website accessibility, to the extent it documents that your website complies with WCAG 2.0 AA.

Step 7. Use Online Accessibility Checker

Vendors and consultants offer a range of online tools that you can use to check if your website is accessible. These tools may even be available for free. Compliance caveat: Using an online accessibility checker doesn’t guarantee that you’ll detect all accessibility issues with your website. So, it’s also important to have an actual person review the site.

Coach's Tip: You can use our Website Accessibility Compliance Checklist as a guide.

Step 8. Implement a Website Accessibility Policy

Last but not least, implement a website accessibility policy like our Model Policy that includes:

• A statement of policy expressing your company’s commitment to website accessibility;
• A definition of accessibility;
• The operating principles you’ll follow in achieving website accessibility;  
• The criteria you’ll use to measure accessibility, which should be based on WCAG 2.0 AA; and
• An implementation monitoring and reporting mechanism.