- It's likely only a matter of time before the Department of Justice mandates website accessibility under the Americans with Disabilities Act, according to NAR associate counsel Lesley Walker.
- Agents, brokers, associations and MLSs are all at risk of litigation if their public-facing websites or online internal systems are not ADA compliant.
- There are some concrete steps real estate businesses can take to get ahead of this issue.
At the National Association of Realtors midyear conference in May, MLS CEO Shelley Specchio stood up in a crowd of hundreds of fellow MLS executives and announced that one of her members had filed a charge of disability discrimination against her multiple listing service, Northern Nevada Regional MLS.
Specchio spoke during a session on website compliance with the Americans with Disabilities Act.
“I wanted to say that out loud so that everyone takes this very seriously,” Specchio said at the time.
The ADA was enacted in 1990 to prohibit discrimination and ensure equal opportunity for people with disabilities in employment, state and local government services, public accommodations, commercial facilities, and transportation, according to the ADA website.
‘Hundreds of lawsuits’ have already been filed
The ADA is often thought of as something that applies only to physical spaces, but it is likely only a matter of time before the Department of Justice mandates accessibility online, NAR associate counsel Lesley Walker wrote in a blog post.
Because the ADA predates the widespread use of the internet, the law is silent on whether websites need to be accessible, she said. Courts are split on the issue, but the DOJ has taken the position that the ADA applies to websites of public accommodations, including businesses.
Hundreds of lawsuits have been filed against businesses demanding accessibility, NAR general counsel Katie Johnson told brokers at the midyear conference.
To NAR’s knowledge, none have yet been filed against real estate businesses for website accessibility, NAR told Inman via email.
But Walker emphasized that real estate firms are nonetheless at risk of being sued — and not just big ones. “Individual real estate agents are also subject to the same threat,” Walker told conference attendees.
The DOJ has said it won’t issue a final rule on website accessibility until 2018, and NAR is deciding whether or not to submit a comment letter to the DOJ by an August 2016 deadline, she said.
“Generally, businesses want to comply. Realtors want to comply. But we don’t know how. It’s not clear,” she said.
Walker discusses website accessibility in a “Window to the Law” video:
Not just a problem for vendors
In the meantime, there are some steps agents, brokers, associations and MLSs can take to try to avoid becoming the next real estate test case.
“[I]t’s a smart risk management decision to evaluate your own websites now,” Walker said.
And don’t think it’s just your website or mobile app vendor’s problem. Both you and the vendor could be responsible for accessibility, she added.
“Look at your contracts to see whether you have any indemnifications. Both could be subject to these litigation threats,” she said.
What does an ADA-accessible website look like?
Accessible websites follow these principles, NAR CTO Mark Lesswing told conference attendees.
- They’re perceivable: Available to the vision- and hearing-impaired either through the browser or through assistive technologies (e.g. screen readers, screen enlargers, etc.).
- They’re operable: Users can interact with all controls and interactive elements using either the mouse, keyboard or an assistive device.
- They’re understandable: Content is clear and limits confusion and ambiguity.
- They’re robust: A wide range of technologies (including old and new browsers and assistive technologies) can access the content.
The “big three” problems cited are with menu navigation, clicking and images, Lesswing said.
For images, for example, the “alt tag” should be filled in to tell vision-impaired people what the image is about. Other non-text content should have text alternatives as well.
When asked how detailed alt tags should be, NAR spokeswoman Sara Wiskerchen said via email that, in general, an alt tag should describe the photo “with some particularity.”
Given the choice between a listing photo description such as “A listing photo from 1111 Pannell Street, Columbia, Missouri” and a description such as “The living room in 1111 Pannell Street is approximately 10X20 feet, has arched doorways and opens onto the foyer on the south side, the kitchen on the north and the guest bathroom on the west,” the latter would be the “more accessible-friendly description,” she said.
The first description “is unhelpful in making the particular image accessible to a vision-impaired user,” she said.
Another consideration is that the user’s adaptive software — speech recognition software, for example — should be able to interact with your website to make it accessible, Walker said.
Lesswing emphasized that making websites accessible was “good business.”
“We want to serve a lot of people,” he said.
How to make your website more accessible
Walker outlined steps real estate pros can take to get ahead of this issue:
- Contact your website provider to inquire about your site’s current accessibility and ask what your provider is doing to improve accessibility.
- Hire a technical consultant to conduct a compliance audit of your website. Sites should comply with the Web Content Accessibility Guidelines 2.0, which the DOJ has cited in its enforcement and from which the principles above are taken. “Take a look at your websites, both the closed portion and the public-facing portion,” Walker said. The complaint against NNRMLS was for its internal MLS system, not a public-facing site — so private sites and intranets are not immune.
- Create a timeline for implementation of necessary changes. The DOJ has generally given businesses up to 18 months to make changes, so if a timeline has been established, changes do not have to be done all at once, Walker said.
- Real estate businesses should train relevant staff on website accessibility issues so they can make sure new content being added is also accessible.
- Consider adding a simple feedback form to your website to help disabled users inform you about what accessibility features may need to be improved or added.
- You could also include contact information for a relevant staff person who can respond to a particular user’s inability to access the site or a portion of it, Walker said.
Giving disabled users the ability to give feedback “would go a long way to avoiding an individual contacting a lawyer about accessibility issues,” she said.
For an example of a compliant website, try edx.org, Walker said.
EdX was the subject of an April 2015 settlement with the DOJ in which the nonprofit agreed to make its website, mobile apps and platform ADA-accessible. The settlement agreement spelled out which steps EdX would take to achieve that goal.
One MLS’s experience
In April, a member of Northern Nevada Regional MLS filed a charge of disability discrimination against the MLS with the Nevada Equal Rights Commission.
The MLS and the member will attend an informal resolution conference in early August, Specchio told Inman via email. There will be no investigation from the state unless the conference fails to produce a resolution, she said.
Citing advice of counsel, Specchio declined to give specifics of the member’s complaint while the conference is still pending.
When the complaint was filed, NNRMLS had already been attempting to accommodate an earlier accessibility request with its vendor, Black Knight Financial Services, which provides NNRMLS’s Paragon MLS platform, Specchio said.
“NNRMLS has brought accessibility issues to the attention of all of our vendors including Black Knight Financial Services and Instanet,” she said.
“They have all been good partners, taking the concerns into account and working to improve access for individuals with disabilities.”
In tests conducted since the complaint was filed, NNRMLS has found that Dragon Dictation, a speech recognition tool, can function with both Paragon and Instanet, a transaction management platform.
“We were able to create a template and a transaction within Instanet and also input a listing into Paragon via drop-down menus and other functionality with the Dragon Dictation software,” Specchio said.
“While it is my understanding that the specifications for the technology that will be required by website providers has not yet been identified by DOJ or ERC, we know this one specific functionality does work.”
When asked whether she had any advice for other MLS providers, Specchio said, “It is the goal and intention of NNRMLS to serve all of our members in the best possible way.
“As an MLS industry, we need to stay aware of how our legacy systems keep pace with other technology. It is our hope that developers within the industry will look at how their products will integrate with accessibility software within existing and new systems.
“We hope that by sharing information about our experience we are helping other MLSs to be in a position to quickly respond to the needs of their members.”