Title III of the Americans with Disabilities Act (ADA) provides that no individual shall be discriminated against on the basis of a disability in the "full and equal enjoyment" of goods and services of "any place of public accommodation." Recent accessibility litigation has focused on the precise definition of "public accommodation," and whether it encompasses virtual space in addition to physical locations. "Public accommodation," as defined by the statute, includes categories of private entities whose operations affect commerce (e.g., restaurants, places of entertainment, places of public gathering, sales establishments). Property professionals already make it a priority to ensure their buildings are accessible, but as the industry continues to become increasingly digital, do commercial real estate companies also need to consider accessibility as it relates to their websites?
DOES THE ADA APPLY TO WEBSITES?
When the ADA was enacted in 1990, it is unlikely the U.S. Congress anticipated the internet would have such a pervasive impact on various aspects of the country’s commerce. In 2010, the U.S. Department of Justice (DOJ) initiated its process of promulgating regulations in an attempt to rectify the discrepancy between outdated statutory language and the increasing need for website accessibility. However, the Trump administration placed proposed regulations on the "inactive" list, and subsequently indicated that it would not disseminate regulations on website accessibility.
Commercial real estate companies should keep accessibility in mind during the design or redesign of websites by working with website vendors to ensure accessible functionality, and offer website visitors a way to provide feedback or suggest improvements.
Perhaps as a result of regulatory inaction and a lack of uniform guidelines, courts are trending towards defining websites as public accommodations under Title III. The DOJ’s decision not to promulgate regulations on the matter is not always accepted as a justification for noncompliance with provisions of the ADA. Businesses in every jurisdiction should be prepared to take steps to limit their liability exposure.
WHAT ACCESSIBILITY LOOKS (OR SOUNDS) LIKE
Creating more accessible websites is not just a smart strategy from a risk management standpoint, but it also allows a broader audience to engage with the content. The nonprofit World Wide Web Consortium (W3C) has developed voluntary standards to promote web accessibility, including detailed technical specifications.
Under these guidelines, web content includes any information contained within a webpage, including "natural information," such as text, images and sounds, as well as the underlying code or markup that defines the structure of the page. The W3C outlines four main principles for creating accessible content:
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Perceivable. Users can perceive the information being presented through one of their available senses. For example, images on the site include text descriptions.
- Operable. Users can operate the interface. This means the website is compatible with assistive technologies, such as screen magnifiers, voice recognition software and screen readers.
- Understandable. Both the information and the navigation should be easily understood. Simple, straightforward website design is ideal.
- Robust. The website needs to be compatible with a wide range of evolving technologies.
Overall, creating more accessible websites requires an investment of time and resources, as well as a plan for monitoring ongoing compliance given the dynamic nature of websites. Commercial real estate companies should keep accessibility in mind during the design or redesign of websites by working with website vendors to ensure accessible functionality, and offer website visitors a way to provide feedback or suggest improvements.
By factoring in user accessibility now, companies can provide all users a seamless online experience and prevent a more costly correction in the future.
ABOUT THE AUTHORS: Olabisi Ladeji Okubadejo is of counsel in the Litigation Department of Ballard Spahr. She represents institutions of higher education and business entities in civil rights and employment matters. Maraya N. Pratt is an associate in the firm’s Litigation Department. Prior to joining the firm, Pratt’s practice focused on civil litigation within the insurance industry, including insurance fraud, coverage and liability issues and tort defense. Michael W. Skojec is a partner in the firm’s Litigation and Real Estate Departments. His practice is focused on real estate litigation, fair housing and accessibility and construction matters.
This article was originally published in the July/August 2018 issue of BOMA Magazine.