Martin J. McAndrew is a partner at O'Connor Kimball LLP. He can be reached at firstname.lastname@example.org.
Websites: Public Accommodations?
Companies face increasing pressure to make sites accessible.
September 17, 2014
Two years ago a Massachusetts court ruled that Netflix, the giant video streaming service, is a place of public accommodation under the Americans with Disabilities Act because its website is “analogous” to a brick and mortar store. A California court that same year came to a different conclusion, saying the video service isn’t a place of physical accommodation because it has no physical location.
Despite the different rulings, Netflix entered into an agreement with the National Association of the Deaf to phase in a process for captioning its videos for people with hearing impairment. Target, the giant retailer, has also been subject to a lawsuit to make its website ADA compliant for people with visual and hearing impairment.
Although many questions remain about whether websites are a “place of public accommodation” under the ADA, including whether a website operator must also have a physical presence to be subject to the law, these cases show that pressure is building on companies to make the information they provide on their websites accessible. The U.S. Department of Justice has issued an advance notice of proposed rule-making on this issue and has taken the position that websites are places of public accommodation. You can be certain this trend will impact real estate.
Real estate websites provide consumers instant access to listings, home tours, and information concerning the surrounding community. It’s estimated that more than 90 percent of consumers start their real estate journey on the Web. Four sites alone—realtor.com®, Zillow, Trulia, and Redfin—attract more than 61 million visitors to real estate websites each month in the United States. The websites of independent brokers and sales associates add millions more monthly views to that total.
Against this background, it’s logical to anticipate that a website devoted to the sale of real estate could be found sufficiently connected to physical places to be considered a place of public accommodation subject to the ADA. While no court has yet addressed whether stand-alone websites are subject to the ADA requirements, it is foreseeable that this will occur. Once it does, you can expect consideration to be given to whether your virtual tour is accessible to those with disabilities. To that end, your websites might ultimately be required to provide closed captioning for audio content and coding that is compatible with web reading software to provide access to users with hearing and vision impairments.
With that in mind, it would be prudent to start looking at what it would take to make your website accessible to the visual and hearing impaired. Two nonprofit organizations, the American Foundation for the Blind and the National Association of the Deaf, make resources available to help you start your research into website accessibility. Even though there are no specific requirements in place today, there could be tomorrow, and taking action now could put you ahead of the game.
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NAR Legal responds: The question of whether an entity that operates a “place of public accommodation” under the Americans With Disabilities Act must also make any website it operates also ADA accessible remains unresolved. As the article points out, in July 2010 the U.S. Department of Justice issued an Advance Notice of Proposed Rulemaking titled “Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities and Public Accommodations.” In that notice the department took the position that websites operated by entities that are public accommodations under the Act must be compliant with the ADA, and sought comment on that issue and on the development of regulations that would implement that requirement. Since the issuance of this Advance Notice of Proposed Rulemaking, the Department of Justice has not issued any regulations. Recently, the department announced a further delay to issuing regulations until 2018. Courts asked to address this issue are split as to if, and when, a website is considered a place of public accommodation. The Department of Justice maintains its broad interpretation that all websites are places of public accommodation under the ADA. The department has been actively pursuing enforcement actions and obtaining consent agreements in several prominent matters involving websites that were not ADA accessible. In the meantime, NAR Members may wish to be attentive to future court cases that address the issue, particularly in the real estate context.
Editor’s note: The "NAR Legal responds” section of this story has been updated to reflect the Department of Justice’s recent actions and changes to its rulemaking timeline.