New guidance on website accessibility under the Americans with Disabilities Act was issued recently by the U.S. Department of Justice.
This has been one of NAR’s areas of interest for several years because there are no specific standards that say exactly how a website needs to function in order to be compliant. There are voluntary standards and various resources for accessibility options, but in the absence of a single standard there’s virtually no way to say that a specific website is ever fully “compliant.”
By way of example, there are incredibly precise requirements for ramps or sinks that need to be accessible. If the ramp is too steep, or if the sink is mounted to high, it’s clear that the item is not compliant.
The most common voluntary standard for website compliance is the Web Content Accessibility Guidelines. But there are currently two (soon to be three) versions of the WCAG standards (versions 2.0, 2.1 and soon, 2.2), and within those standards are three “conformance” levels (A, AA and AAA) representing how thoroughly a site addresses certain standards. Yet, there is nothing from the federal government or courts that clearly says “You are safe if your website reaches this conformance level of that standard.”
The hope had been that this new guidance would be that statement. Unfortunately, it isn’t.
Instead, the DOJ provides some accessibility resources for businesses and provides examples of common website accessibility barriers, such as poor color contrast, lack of “alt text” that explain images when using a screen reader, no captions in videos and inaccessible online forms. The list is not exhaustive, but does at least give businesses an idea of what sorts of things the DOJ is likely to find the most important in pursuing potential cases against businesses.
So what’s a Realtor® to do?
Most of the WCAG standards are incredibly technical, so unless you’re coding the site forms, selecting fonts and text colors and writing your own video captions, there’s probably not much you can do to improve compliance – you’ll probably need a little help. The most important advice from NAR and from PAR has been and continues to be that agents and brokers should work closely with their web providers to ensure that all reasonable efforts are being made to make and keep your website as compliant as possible with the WCAG standards. In fact, it’s a good idea to ask your website provider questions like, “What are you doing to ensure website compliance?”
And when you have that conversation, be sure to listen to the things they’re telling you that you CAN work on. For example, if you’re providing your own photos for the website, they may ask you to also provide appropriate alternative text, or if you’re posting videos, they may suggest a product that will generate captions for you. Even if you’re not doing the tech work yourself, you still need to put in the effort yourself where necessary.
And of course, since this is a huge gray area in the law there are some “enterprising” plaintiffs’ attorneys who have built up a business model around sending non-compliance letters to business owners in the hopes that some of them will pay the sender some amount of money to agree not to sue them. PAR continues to advise that you not engage with those attorneys directly. Instead, speak with your own counsel and report the issue to your errors and omissions insurer as soon as possible. Many insurers have prepared responses they will provide and/or they may provide defense counsel proactively to address the issue.