Website Compliance with ADA!

 

My guest will be Adam Chotiner, an attorney with Shapiro Blasi Wasserman Hermann in Boca Raton, Florida. Adam has a lot of experience and knowledge of this area and I think everyone will find it very interesting.

Length: 30:49
Published: 08/07/2020

Listen In: iTunes or Google Play Music

Melissa Jay Murphy 0:06
Welcome to this week's Title Now Pop Up webinar, I'm Melissa Murphy General Counsel at The Fund, and I have the pleasure of hosting these weekly pop up webinars. For those of you who might be new to this, we offer them pretty much every week. They are on Thursday’s at noon. 30 minutes. I'm pretty strict about that, and they are free, and we just try to touch on a variety of topics that would be of interest to real estate practitioners, Fund Members their staffs, and anyone interested in the real estate and settlement services industry. We also push the audio content out on our podcast, which is also called Title Now, so that's easy to remember. And you can subscribe to that podcast anywhere that you subscribe to other podcasts. So, sign up, and then you can get the audio content if you miss a weekly webinar. So, thanks.
 
Many of our past webinars have focused on an issue related to the pandemic, that we are all currently experiencing remote online notarization altered office practices, eviction and foreclosure moratoriums, which by the way was extended today, until September 1, and the economy. But today we're going to learn about an issue facing many businesses that is not related to the pandemic. So, we're all aware of the Americans with Disabilities Act. And some of us are certainly more aware than others just based on your circumstances. But have you ever thought about whether the ADA applies to websites or to your website? We have the perfect guest with us today to talk about that. So, I want to introduce Adam Chotiner, he's a shareholder with Shapiro Blasi Wasserman Hermann in Boca Raton. He's been practicing law for 22 years. Adam is board certified by The Florida Bar in labor and employment law, but throughout his practice he has also had extensive experience defending public access discrimination claims under the Americans with Disabilities Act, and various types of Fair Housing Act claims. He has counseled countless clients on accessibility matters, including physical barrier issues and website accessibility concerns. So welcome Adam, thank you so much for being with us today.
 
Adam Chotiner 3:12
Thank you, Melissa, and welcome to everybody. I'm going to jump right into it. As she said today, I'm going to speak with you about public Access Disability Discrimination claims. For more than 25 years extensive substantial amount of such claims have been filed against private businesses and property owners under the Americans with Disabilities Act of 1990. Recently there's been a new trend that has developed, where real estate agents and brokers are getting hit with claims that their websites are advertisements, under the Fair Housing Act, and are not accessible to visually impaired individuals. So, let's start at the beginning, which is the ADA. The ADA has three parts to it. Part One deals with employment. Part Two deals with state and local governments. We are dealing with Part Three, Title Three. Title Three became effective in 1993. Beginning around the mid-90s, mid-to-late ‘90s, a wave of ADA lawsuits began to be filed and Florida has consistently been one of the top states for ADA lawsuits in the entire country. Now, when it comes to physical structures and surrounding architectural issues, there are literally hundreds of regulations that specify how these properties and facilities are to be compliant. It covers everything from how wide a parking space needs to be to the slope of the parking lots and ramps to table heights to door widths to even the height of the toilets and the type of faucet handles in the bathroom. The level of detail is actually staggering. But it generally makes it easy to determine whether something is compliant or not. You take out a tape measure, or a level, and it's either compliant or it's not. Since the effective date in 1993, all new construction has had to comply 100% with the regulations. Existing structures at time also need to comply, there is no such thing as being grandfathered in where you just don't have to comply at all. Existing structures have a different standard though they have to comply, but they only have to comply to the extent it is readily achievable. Now what is readily achievable. It's sort of like beauty, it's in the eye of the beholder. But ultimately if a property or a business is not 100% compliant. Then there is potential exposure and a risk of being sued. And if you cannot achieve 100% compliance, for whatever reason, then the goal is to be as unattractive a target as possible.
 
Melissa Jay Murphy 6:20
What do you mean by an unattractive target?
 
Adam Chotiner 6:25
The example I always give is this. Let's say you have a restaurant. It's a free-standing structure, and it has a restroom, of course. Let's say that everything inside that facility everything from the parking lot to the interior everything is 100% compliant, except the size of the restroom. Okay, even within the restroom, the fixtures are correct, the toilet is the right height, the grab bars are in the right place, but ultimately there's, it's just such an older property that the only way to get sufficient clear floor space within the restroom, is to start knocking down walls, you need to enlarge the restaurant. So, you have a situation like that. But again, everything else is compliant. In my experience, that is not a property that is likely to be sued. Because it's simply an unattractive target to a plaintiff's lawyer. Why, because in that situation, the defendant, number one probably has a good argument that it is not readily achievable. And number two, as part of that you may very well be backing the defendant into the corner where it might be better for the defendant to actually fight the case and establish that it's not readily achievable. And this is a good example of what readily achievable means. It's not just the cost of doing the work. Say again in the restaurant example. Well if you're going to enlarge the restroom, you're going to make something else, smaller, and let's say as a result of enlarging the restroom, you actually lose one or two tables for customers to sit at. Alright well now, there's a different party analysis which gets into ongoing damage ongoing loss of revenue. So that's what I mean when I say, an attractive target.
 
Melissa Jay Murphy 8:24
Okay.
 
Adam Chotiner 8:25
So, until several years ago, pretty much all of the ADA lawsuits were these kinds of physical or architectural barrier cases. Then the attorneys who file these cases decided to try something new. They started suing businesses by claiming that the business's website is inaccessible to visually impaired individuals. Now blind and visually impaired individuals can access and use websites and the internet, using what's called screen reader software. But for the software to be effective, the website itself, simply needs to be programmed in a certain way. And the essence of the claims, was that the websites were not programmed in the right way. Now, these website cases are especially challenging. The main reason is that unlike with physical structures. There are no regulations that specify what it means for a website to be compliant. We just don't know specifically what it means. A secondary challenge is that the law is currently unsettled as to the extent to which a business's website can even be challenged under the ADA. In the 11th circuit, as it stands right now, there needs to be a nexus, or a connection to a physical location that a person may seek to access or learn more about such that the website is treated as an extension of that physical space.
 
Melissa Jay Murphy 10:07
So, have any website cases been brought to trial and end been ruled upon?
 
Adam Chotiner 10:16
So, the question today in the entire United States, there has only been one ADA website case which has gone all the way to trial. Not coincidentally, that was in Florida. In fact, in South Florida, and that case was brought against Winn Dixie the supermarket chain. Winn Dixie lost. Now, before going on to talk about that case this is a good point to discuss what I call, or what people call ‘WIC AG’, WCAG stands for the Web Content Accessibility Guidelines. WCAG comes from an organization called the Web Accessibility Initiative, which in turn is part of the World Wide Web Consortium, W3C, the consortium is an international community, that helps set standards for the web, so that the web is more uniform and runs better. For a few years, the standard, quote unquote, for website accessibility under WCAG has been what we call WCAG 2.0. Now that version of the guidelines has 38 of what are called success criteria, which are things that at least ostensibly can be measured in some way to determine accessibility. And recently, they came out with WCAG 2.1, which adds 12 new success criteria for a total of 50.
 
Melissa Jay Murphy 12:00
What are some examples of this success criteria, because I'm trying to envision what it is about a website that is critical?
 
 
Adam Chotiner 12:11
Sure. Here's just a handful of things that are identified as success criteria. Is there are there transcripts available for video only and audio only content? Is there closed captioning for videos with sound? You cannot rely on color alone to display or convey information. You have to be able to pause, stop or mute any audio conveyed on the website. All content and functions on the website, must be accessible by keyboard only without using a mouse. Users have to be able to navigate through a website in a logical sequential order that preserves meaning. Now, that's a little vague but that is one of the criteria.
 
Melissa Jay Murphy 13:04
You would think that we need that on all websites.
 
Adam Chotiner 13:06
Yeah, you would think though. Form errors need to be easy to identify understand and correct. One of the newer success criteria is to make sure that text spacing is able to be adjusted without causing a poor experience using the website. So those are just some examples of the success criteria. Now, I've handled many of these ADA website cases. And everyone that I've settled on ultimately, we have settled by using the WCAG 2.0 or 2.1 standard. Again, there are no regulations. But WCAG is pretty much the closest thing we have right now to some sort of objective criteria.
 
Melissa Jay Murphy 13:55
So those WCAG guidelines had been used to settle a case but no court has ruled that those are the applicable standards.
 
Adam Chotiner 14:04
No, actually that's what happened in the Winn Dixie. Okay. The Winn Dixie case Winn Dixie lost, and the judge imposed WCAG 2.0 as the standard. Now Winn Dixie appealed that decision. Now oral argument in that appeal before the 11th circuit was held, almost two years ago October of 2018, and we still do not have a ruling. Now, in my experience that's kind of a long time for an appellate court a federal appellate court to, to not rule. We're not really sure what they're waiting for at this point. But those of us who practice in this area are very anxiously waiting for some kind of guidance. So with all that in mind, I'd like to just briefly talk about what I mentioned was sort of the latest craze, which is that a lot of real estate agents brokers and realtors are receiving these demand letters and draft complaints. Now, so far, based on what I've seen these demand letters and draft complaints are being asserted under the Fair Housing Act. As I'm sure you know the Fair Housing Act, anti-discrimination provisions apply to any advertisements. Unfortunately, it's probably difficult to argue that a website, on which available housing can be viewed, is not an advertisement. I think that's the essence of what these demand letters are claiming. Now, a question is why are they traveling under the Fair Housing Act and not the ADA? I believe there's two reasons. First, the ADA only applies to quote places of public accommodation close quote that generally means places like restaurants, stores, shopping centers, malls, movie theaters, gas stations, office buildings, and similar private businesses with a physical location that is open to the public. I think it's at least arguable that real estate agents and brokers, maybe some of them do not represent places of public accommodation, particularly if they maybe work out of their home. So rather than even fight that battle. These lawyers sending these letters are going right to the Fair Housing Act. The second reason why I think they're traveling under the Fair Housing Act is that the ADA does not allow for damages, a plaintiff suing under Title Three of the ADA is not entitled to damages or monetary relief. They're only entitled to injunctive relief, basically in order requiring the defendant to fix the property, of course, that also entitles the plaintiff to have his attorneys’ hourly fees paid. And because it's an only injunctive relief. There are no jury trials, under the ADA, but with the Fair Housing Act damages are recoverable and jury trials are allowed.
 
Melissa Jay Murphy 17:08
So, How are these cases against the real estate agents and the real estate brokers? How are they being defended can they be different?
 
Adam Chotiner 17:18
Well that's a, that's a good question and I think it's the answer is, I'm going to answer it in a more broad sort of way, which really it applies to any of these sort of public access type disability claims. You know, in theory, they certainly can be successfully defended, but it is often cost prohibitive to take that approach. Under these laws, a prevailing plaintiff will recover the attorneys’ hourly fees and costs, however, except in extremely rare situations, a prevailing defendant gets nothing, and a prevailing defendant should not expect to recover their fees and costs. So, most of these cases do settle for nothing else than a business decision in terms of overall cost and expense. Plus, in my experience, it is unusual for there to be insurance coverage that defends these claims. I have seen it, but it's definitely on the unusual side. Now, for many years, a typical defense in an ADA case at least would attack, the plaintiffs standing, essentially, arguing that the plaintiff was not a genuine customer but instead was, you know, a serial filer of lawsuits. Unfortunately for those of us who defend these claims and they in the businesses they get it back in 2013, the 11th circuit held that ADA plaintiffs can have standing as testers, which basically took a bad situation and made it worse. And actually, made it easier for these cases to be filed. Nowadays they the most effective way to defend a claim is for a defendant to fix everything that needs to be fixed and to do it ASAP. Under the ADA, if a defendant fixes everything that's wrong, then the defendant can seek a dismissal based on mootness, since only injunctive relief is available. If everything is fixed, then there's no relief to grant. Significantly infant case is dismissed due to mootness, then the plaintiff is not entitled to attorneys’ fees, even if the defendant only fixed everything, because a lawsuit was filed. Now, in any of these matters there's always two goals. Okay, at least from my standpoint, representing a client. First you want to address and resolve the pending claim. But second, you want to take steps to prevent future claims, because of issues remain. There's definitely exposure for a subsequent lawsuit. Now, for several reasons, you know, certainly, it'll typically take a client, some time to come into compliance. Once a matter settles. Now, if it's a private settlement, and the property or website remains non-compliant pending any modifications, then there is a risk of another claim being asserted, and the fact that you've reached a private settlement with another plaintiff, but yet haven't yet finished the work is not a defense is not a defense. Having said that, if an actual lawsuit has been filed as opposed to a pre-suit settlement, then you can choose to settle the matter via a consent decree, which basically serves as an order of the court. And so, if during the compliance period, and I've seen it anywhere from six months to three years or more. But if during that period another claim is asserted, then you would have an excellent argument that the new law suit is moot and shouldn't be dismissed, because the defendant is already under a court order, meaning this consent decree, and that order provides remaining time to comply. Ultimately, the sad truth is that when it comes to these public access claims. There really is no sort of get out of jail free card. There's no, I say there's no VIP lounge or champagne room, you know, they need to be addressed and ultimately it's going to cost money plain and simple.
 
Adam Chotiner 21:47
Now, I will say this. One of the issues with website issues is that taking the approach or quote unquote fixing everything right away is challenging. Why? Because there are no regulations, and so it can be very difficult to convince a court that your website now complies with the ADA or the Fair Housing Act. When we really don't know what it means to comply in the first place. So that can be really challenging, but I when I speak about these public access claims I always like to tell the Clint Eastwood story. And I tell it to clients as well. The Clint Eastwood story doesn't necessarily make my client feel any better once they've been sued. But I do tell it to demonstrate that that businesses and individuals who get hit with these claims. They shouldn't necessarily feel powerless, because they're the little guy. The truth is sometimes you can't fight City Hall, no matter who you are. For many years, one of the primary gripes about these public access claims, is that the law does not require pre suit notice it simply does, you can just go right into filing a lawsuit. There have been attempts to change the law, including a couple of years the House of Representatives passed the bill. But it went nowhere in the Senate. And I will tell you having followed this issue for many years. This is not some kind of political hot potato issue. That scenario I just described is played out many times over the past 20 years, with different parties in the two houses and in the White House. It just doesn't matter who is in charge. It just hasn't happened, and I don't think it's going to happen. So about 15 to 20 years ago, Clint Eastwood got sued. Regarding the restaurant that he owns in Carmel, California, where many years ago he was the mayor. Now, like many people. He couldn't believe that the law didn't require a pre-suit notice, but unlike most people, and because he's Clint Eastwood. He was able to go to Washington DC, and he spoke before a congressional committee and implore them to change the law for all the reasons you might expect. But as you've already heard nothing happened, law hasn't been changed. The moral of the Clint Eastwood story is that in Dirty Harry couldn't get something done really what chance do the rest of us have, again, doesn't necessarily make feel, make people feel better, but it might make them feel a little less powerless that ultimately you're just up against something that it's very difficult to fight. So, for now, like I said, We await further guidance from the courts, particularly on these website issues. But ultimately, if someone does get hit with an ADA claim or a demand letter under the Fair Housing Act, really they need to try and look to achieve the same two goals I mentioned earlier. You want to address an obvious thing resolve the immediate claim, but it is important to take steps to try and prevent future claims. Thank you.
 
Melissa Jay Murphy 25:08
So, Adam a couple of questions, with regard to the website situation. Are there companies out there that are sort of in the business or are in the business of helping companies fix their websites? Is there a burgeoning industry out there? Is that a well-established industry?
 
Adam Chotiner 25:38
I'm not sure I would describe it as well established, but it is an industry now I will say this. Nowadays, there's things that you can buy that I've seen this sold called widgets that are ostensibly these autonomous programs and sort of apps that you can install on a computer system that are intended to, you know, address these kinds of website issues. However, in my experience, what I've found is that they're better than nothing, but in many cases I believe that the level of compliance that they help you achieve is still significantly lacking, and does leave you exposed. If a company came to me and said, you know, money is no object. We want to be as compliant as possible. We want to comply with WCAG 2.1 to the maximum extent. How do we do that? Then I would advise them to engage a company that does specialize in website accessibility compliance, and there are companies like that. There are companies that I've referred clients to. And what these companies do is, it's not merely a matter of programming to achieve true compliance, you want to do human auditing. What the widgets purport to do is sort of autonomous auditing, but it just isn't as effective. So these companies make the programming changes to the website, but then they literally do human spot checking. They actually check the effectiveness of the changes they go through, the success criteria, and they see hands on is this stuff, you know, now compliant the way that WCAG intends.
 
Melissa Jay Murphy 27:55
So you need to make sure that whatever company or product that you buy knows what those guidelines are and agrees to bring you in compliance with whatever the most current version of those guidelines would be on the pretty reasonable assumption that that's going to be the measure, or the standard against which you're going to be measured.
 
Adam Chotiner 28:20
That's true. And I will say I mean, you know like, when a lot of things you do get what you pay for the widgets are generally an economical option because it's like I said it's sort of autonomous. But to give you an example when the Winn Dixie trial took place. The testimony at that trial was that for Winn Dixie to get its website to comply with WCAG 2.0, that the cost involved in that was a six-figure number. So now granted the Winn Dixie website has hundreds maybe thousands of pages to it. Because presumably you know if you click on a product, you know it might have its own page so it's an extensive website and generally speaking, the cost of modifying a website is largely tied to how many pages the site consists of, but it's not necessarily an inexpensive proposition to have a company do it with human auditing. But again, if you're really looking to protect yourself and you're looking to maximize or minimize your exposure and risk, then that's the way to go.
 
Melissa Jay Murphy 29:44
Well, Adam, we are out of time. Thank you so much for spending a little bit of time with us and clearly you've just touched the surface with us on this issue but I think you've done a great job of telling us what we need to know in order to know how much we don't know which is always helpful in my estimation.
 
Adam Chotiner 30:09
Everybody now knows enough to be dangerous.
 
Melissa Jay Murphy 30:11
Very, very.
 
Melissa Jay Murphy 30:14
That's always our goal in these webinars.
 
Adam Chotiner 30:18
You're right. You're very welcome Melissa Thank you very much. Thank you everybody for having me. Thank you.
 
Melissa Jay Murphy 30:24
Thanks everybody for attending. You can catch the audio content on our podcast I will remind you of that and look for the notifications of our future pop up webinars, Thursdays at noon 30 minutes. And as always, Thank you for your support of The Fund.