Brokerages Receiving Demand Letters on Website Accessibility

MAR Associate Counsel Catherine Taylor discusses the website accessibility demand letters and what to do if you get one

An out-of-state firm called the Portell Law Group has been sending Cape Cod, Martha’s Vineyard, and Nantucket 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 demand letter from the Portell Law Group states 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.

“They are using a novel claim under the Fair Housing Act. Usually, we’ve seen these claims with regards to the Americans with Disabilities Act,” says Catherine Taylor, staff attorney for the Massachusetts Association of REALTORS® during a recent pop-up Zoomed In on Real Estate hosted by CCIAOR. “This has not been litigated.”

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: Defending Portell Law ADA and Fair Housing Claims.

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.

Here are the things to do if you have received a letter:

  • DO NOT ignore the letter
  • Contact your E&O provider
  • Use an attorney to draft a response (your E&O provider may recommend one)
  • Contact your website provider to correct any accessibility deficiencies

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 their 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 demand letter is real and should be taken seriously.

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).