MAR Advisory Concerning Website Accessibility Claims

An out-of-state firm calling itself the Portell Law Group has been sending Massachusetts real estate brokers and agents demand letters and draft federal complaints alleging that the brokers and/or agents are violating the Fair Housing Act by operating websites that the visually impaired cannot fully access. The letters demand that the real estate professionals settle by making the websites fully accessible to the visually impaired and paying the firm an unspecified amount in attorneys’ fees and expenses. Any REALTORS® who have received such a demand letter are advised to promptly consult with their own counsel in order to determine how to respond. REALTORS® should also contact their errors and omissions insurance provider and website vendor. Those who have not received the letter should consider reviewing their websites’ accessibility to minimize the likelihood of future problems.

Update:

On August 16th, NAR, in consultation with the Massachusetts Association of REALTORS® and the Florida Association of REALTORS®, sent the following letter to the Portell Law Group pushing back on their claims. We will keep you apprised of any response NAR receives.

NAR’s Letter to the Portell Law Group

Frequently Asked Questions

Individuals who are blind or visually impaired use screen reader technology to access websites and conduct business on the internet. The screen readers convert visual content into audible sound. In order for this to work, the website must have been designed to function with the most commonly used screen readers or other technology. In addition, there are certain types of information on a website, such as photographs, that cannot be read and where short descriptions of what is depicted (“alt text”) can be used for those who are unable to see.

The Worldwide Web Consortium has issued Website Content Accessibility Standards (“WCAG”), which have been widely cited as a standard for designing websites that are fully accessible to those with disabilities. While WCAG 2.0 has been described as the “gold standard” for website accessibility design, there is also now an updated WCAG 2.1, and the standards continue to evolve over time.

Over the past several years, courts in various jurisdictions throughout the country have concluded that websites operated by brick and mortar retail establishments are “places of public accommodation” for purposes of the Americans With Disabilities Act (“ADA”) and that the websites must therefore be reasonably accessible by those with handicaps, including those who are blind. For example, Domino’s was sued because a blind individual allegedly could not use the website to order pizza. Literally, thousands of ADA lawsuits have been filed against businesses because their websites are claimed to be public accommodations that are insufficiently accessible to the blind and visually impaired. Similar arguments could potentially be made regarding websites run by real estate professionals. The courts have not generally said that all websites must meet WCAG standards, but they have found ADA violations where websites considered to be public accommodations are insufficiently accessible.

The letters and draft complaints that are currently being distributed in Massachusetts don’t rely so much upon the ADA as upon the Fair Housing Act (“FHA”). The FHA prohibits discrimination against the disabled and others in the advertising, sale, and rental of real estate and requires that providers of housing provide the disabled with reasonable accommodations. There are no federal regulations or controlling court decisions under the FHA concerning website accessibility for the disabled. Organizations that advocate for the disabled have written about problems encountered by the blind in searching for and procuring housing (particularly rental housing) if properties are only available through websites that the blind cannot access. Because of the lack of federal regulatory guidance or federal court decisions, it is unclear what standard of accessibility, if any, applies to a broker’s website under the FHA, or whether a broker can satisfy applicable requirements by reasonable alternatives, such as a staffed phone line for those who are unable to access certain features of the website due to a disability. (The Department of Justice alluded to a staffed phone line as an alternative to an accessible web site many years ago in connection with ADA rules applicable to government agencies).

Suits brought against businesses for failing to have a website accessible to the blind in violation of the ADA, and the claims that are now being threatened against Massachusetts real estate professionals under the FHA, generally do not entail viable claims for monetary damages. Typically, the plaintiffs in these cases ask that the court issue an injunction mandating that the website’s alleged shortfalls be remedied. A prevailing plaintiff through a judicial decision or a settlement (but typically not a prevailing defendant) can recover attorneys’ fees under these statutes, so defendants whose websites are in violation of applicable statutes are potentially in the position of having to pay for their own lawyer and the opposing lawyer, in addition to having to bear the expense of any upgrades that they agree to make or are ordered to make to the website. This situation coerces defendants into settling their claims before the attorneys’ fees multiply even if there might be valid defenses to the claims.

The demand letter from the Portell Law Group says that it represents a non-profit named “Access4All, Inc.” whose mission is said to be the promotion of equal access for the disabled. The letter lists various specific respects in which the recipient’s website allegedly failed to function properly when a tester working for the non-profit audited the website using screen reader technology. The letter indicates that the recipient can settle the matter by committing to fix the alleged website accessibility issues and by agreeing to the payment of attorneys’ fees to the law firm. The letter states that the plaintiff may proceed with the filing of the draft complaint if there is no response to the letter within ten days. A sample of the text of the letter can be found on this website of a California firm that defends claims brought in that state by the Portell Law Group.

REALTORS® that haven’t yet received a demand letter should review their websites with an IT professional and consider whether the essential services being offered on the website would be available to individuals who are navigating the website through a screen reader. If the website is deemed a public accommodation, making it reasonably accessible to the blind is required under the ADA and will also serve to limit risks under the FHA. If the website can be brought up to WCAG standards without prohibitive cost, that would be ideal.

REALTORS® who have received the Portell Law Group letter and draft complaint should promptly consult with legal counsel for advice as to how to respond. Ignoring the letter is not the best approach. At the very least you will want to determine whether there are important features of your website that the blind cannot access and if so, explore the cost of fixing these issues, versus any other alternatives that may be open to you. Your lawyer can also provide advice as to what response to the plaintiff’s counsel would be appropriate.

The potential leverage on the part of the plaintiff’s counsel will be greatest as to those whose websites are the least accessible, particularly if the blind and visually impaired are meaningfully impaired in their ability to search for and procure housing on the website when compared to sighted individuals. If the problems have been fixed, or are being addressed in a contract or work order with an IT firm for website upgrades, the plaintiff can conceivably still file a claim to try to collect their pre-litigation attorneys’ fees (on the theory that they are in effect a prevailing party), but this may not be the most advantageous position for them to be in.

Not every demand letter sent to the targeted business necessarily has merit under the applicable statutes. In website cases brought by an out-of-state non-profit based on violations identified by a “tester,” there are complicated legal questions as to whether the plaintiff who is asserting the claim has the legal standing to do so under either the ADA or the FHA.

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