Becker & Poliakoff

Americans With Disabilities Act (“ADA”) Accessibility for Websites

Americans With Disabilities Act (“ADA”) Accessibility for Websites

Becker & PoliakoffIt is unclear from the current case law, guidance, and the ADA, whether a condominium association, with short term stays of thirty (30) days or less, must provide an accessible website for people with disabilities.   One of the only cases to address this situation is Dunn v. Phoenix West II, LLC, et al., 2016 WL 740294 (S.D. AL 2016).  This case involved a disabled individual, confined to a wheelchair, who wanted to vacation at the Phoenix West II Owners Association. The units are owned in fee simple by various owners, with Phoenix West II, LLC owning roughly 10 units. There is a rental management agent for the individual condominium unit owners that operates the reservation system. Mr. Dunn contacted the reservation system by phone to determine if there were ADA compliant rooms and facilities because the website did not contain this information.

Mr. Dunn and his family stayed at the association and thereafter, filed suit for various violations of the ADA, including a violation of 28 C.F.R. §36.302(e)(1)(i) and (ii), “[r]eservations made by places of lodging and states that:

a public accommodation that owns, leases (or leases to), or operates a place of lodging shall, with respect to reservations made by any means … or through a third-party—

(i) modify its policies, practices or procedures to ensure that individuals with disabilities can make reservations for accessible guest rooms during the same hours and in the same manner as individuals who do not need accessible rooms;

(ii) identify and describes accessible features in the hotels and guest rooms offered through its reservations service in enough detail to reasonably permit individuals with disabilities to assess independently whether a given hotel or guest room meets his or her accessibility needs.

Plaintiff filed a complaint that alleged unlawful discrimination under 42 USC § 12182(a) for “failing to ensure that individuals with disabilities can make reservations for accessible guest rooms during the same hours and in the same manner as nondisabled individuals, pursuant 28 C.F.R. § 36.302(e)(1)(i), and by failing to describe the accessible features in the hotel and guest rooms offered through its reservations’ service both in advertisements and online in enough detail to reasonably permit individuals with disabilities to assess independently whether the condominium meets their accessibility needs, pursuant to 28 C.F.R. § 36.302(e)(1)(ii).”  Specifically, “Dunn could not determine from the existing systems and advertisements whether his condominium was accessible.”

The Defendant, association, filed a motion to dismiss this count alleging the claim was not properly pled.  The Court dismissed Count 5, as to the association explaining that Plaintiff alleges that the Defendants violated the ADA “by failing to ensure that individuals with disabilities can make reservations for accessible guest rooms during the same hours and in the same manner as non-disabled individuals” and “by failing to describe the accessible features in the hotel and guest rooms offered through its reservations’ service both in advertisements and online in enough detail to reasonably permit individuals with disabilities to assess independently whether the condominium meets their accessibility needs[.]” Plaintiff has failed to allege sufficient facts to show how the association owns or operates or has any control or authority over the descriptions of the accessible features within the individual condominium units, i.e., the alleged “guest rooms”, rented through the rental management agent. Accordingly, the association’s motion to dismiss was granted as to Count 5.

This holding would seem to imply that, if sufficient facts were pled to demonstrate that the association owns, operates or has control over the descriptions of the accessible features within the individual units, the case could proceed.

This area of the law is in a state of flux. For years, the Department of Justice (“DOJ”) has been attempting to create a set of guidelines for website accessibility to no avail. As recently as June of this year, several members of the House of Representatives asked Attorney General Jeff Sessions to state publicly that private legal action under the ADA, with respect to websites, is unfair and violates basic due process principles in the absence of clear statutory authority and to issuance by the DOJ of a final rule establishing website accessibility standards.

In response, on September 25, 2018, the DOJ did not do as the members requested, but it did provide some guidance and invited Congress to take legislative action to address the exploding website accessibility litigation landscape. However, the DOJ has stated that Title III of the ADA applies to places of public accommodation’s websites and the absence of specific technical requirements for websites does not serve as a basis for non-compliance.

Therefore, if this community is determined to be a place of public accommodation due to the transient nature of the occupants, arguably it must comply with the DOJ’s most basic guidelines. DOJ has applied “The World Wide Web Consortium’s (“W3C”) published “Web Content Accessibility Guidelines (“WCAG 2.0 A and AA Success Criteria) as a baseline for assessing website accessibility for federal agencies. =Although the DOJ has not adopted any formal standards for website accessibility in the private sector, it is expected that it will require the private sector to comply with WCAG 2.0 A and AA Success Criteria. It should be noted that there is a new version of content accessibility guidelines known as “WCAG 2.1”.  These guidelines can be found at https://www.w3.org/TR/WCAG21/.

You should contact your web designer or developer to determine how to bring the association’s website into compliance with these guidelines to avoid any potential ADA violation claims, or insulate the association from these requirements by requiring individual owners to rent the units using their own websites. Even then, it is unclear how the DOJ and/or the courts will evaluate future claims given the influx of these cases and the evolving and inconsistent rulings.