In recent years, and trending more frequently as of late, we have heard about businesses, big and small, receiving demand letters related to their website accessibility, alleging ADA noncompliance, and threatening to file suit and seek damages on behalf of the people with disabilities they represent. Here we will cover what web accessibility means and is required and by whom under the Americans with Disability Act (ADA) and Fair Housing Act (FHA).

Associations may be well served to have an audit performed on their websites to ensure that their digital communications, information, forms, and platform are accessible to all residents. Associations should also be prepared to respond to modification requests concerning website accessibility if their current website has barriers for people with disabilities.

The ADA

Many of you undoubtedly know that Title III of the ADA requires places of public accommodation (private businesses open to the public) to remove barriers, if achievable, to allow access to people with disabilities. Often, we think of physical barriers, like stairs, that can prevent people with mobility impairments from accessing brick and mortar businesses. In a world that is increasingly digitized, particularly post-pandemic, the barriers to accessing goods and services are not just physical. The DOJ has published guidance which explains that websites offering goods or services to the public (to consumers) are “places of accommodation” as that term is used under the ADA and thus private businesses have an obligation to remove web accessibility barriers. The DOJ’s guidance on website accessibility can be found here. The DOJ has indicated that ensuring accessible digital content and communication so that more people can access, navigate, use, and interact with web-based content and tools is a priority.

Website accessibility impacts a wide range of people, including those who have a visual, hearing, or cognitive impairment along with people with a disability that prevents them from grasping a mouse and therefore engage in web content through screen readers or keyboard navigation. The DOJ explains, for example, a website may not be accessible if the website does not have appropriately sized text, sufficient color contrast, lacks text alternatives on images, has inadequate video captions, has inaccessible online forms, or uses mouse only navigation. If a website is not accessible, a person with disabilities may not have access to information or programs, or may not be able to transact for goods and services.

Under the ADA, the DOJ has enforcement powers to require a business to remediate a website accessibility issue and to comply with the guidance it has set forth. Further the ADA provides people with disabilities private enforcement rights that include the ability to recover legal fees associated with such a claim. This has resulted in some serial litigants sending generic demands to businesses to try to force a settlement because their website is not accessible.

For those businesses subject to the ADA, it is important to have regular accessibility compliance audits. Businesses may also want to review any website operator and/or website provider agreements to see if there is an opportunity to shift responsibility for ongoing ADA website compliance.

How does ADA compliance affect developers, realtors, managers, and community associations?

• If a developer creates a property website to market the community and units to the public, that property website would be subject to the ADA.

• If a realtor has a website to market the community and units to the public, that property website would be subject to the ADA.

• If a property management company operates a website that offers services to the public, including associations, that website would be subject to the ADA.

But what about a community-run association website? Community associations that are not open to the public and do not offer services or goods to the public are not subject to the ADA. The picture may become more complicated if the community website posts advertisements for rentals or sales, but typically the ADA is not applicable. Nonetheless, the story does not end here.

The Fair Housing Act

Federal and State Fair Housing Laws prevent housing providers from discriminating against people with disabilities in the sale, rental, finance, or in the terms and conditions of housing. So, how does the FHA come into play? There are no regulations from HUD on website accessibility and we are aware of no controlling court decisions under the FHA concerning community association website accessibility. Even so, it is easy to see how an association could receive a reasonable modification request, in accordance with state and federal fair housing laws, that changes be made to a community website to render it accessible so that residents with disabilities can have full access to housing services/benefits. Housing providers have an obligation to make reasonable modifications and, in the case of buildings with ten or more units, to pay for those modifications. While it would no doubt involve some expenditure to provide accessibility updates to digital content, it would likely be difficult for a housing provider to deny the modification on the grounds that it would constitute an undue financial or administration burden. More and more, condominium documents, notices, information on facilities, programming, maintenance requests, and fee payment all occur online. People with certain disabilities may not have the same access and opportunity to interface with the community website and these features if a website is not accessible.

Associations may be well served to have an audit performed on their websites to ensure that their digital communications, information, forms, and platform are accessible to all residents. Associations should also be prepared to respond to modification requests concerning website accessibility if their current website has barriers for people with disabilities.

If you have questions about accessibility requirements, the ADA, or the FHA, contact us.