How This All Started
At the beginning of the week, I had a really interesting call with a residential property manager in southern California. This prompted a series of calls with my fellow DOJ alumni, Marc Dubin because he has a bit more experience with the Fair Housing Act than I do. The question: what are a housing provider's responsibilities with respect to web accessibility?
Disclaimer: I'm no expert on the Fair Housing Act. Also, while I've researched plenty of ADA web accessibility cases, I know of no specific reported cases the FHA and websites. Also, special thanks to my colleague Terry Kitay, Esq., for making sure didn't completely put my foot in my mouth when it came to the Fair Housing Act! She is the person I would turn to regarding anything relating to the FHA.
Americans with Disabilities Act (ADA) and Fair Housing Act (FHA)
When we were trial attorneys at the Justice Department, Marc and I both worked in the Disability Rights Section, which is part of the Civil Rights Division. While you might think that our team handled everything relating to disability discrimination, our Section only focused on Title II and III of the Americans of Disabilities Act (ADA). Title II is the most important law addressing discrimination against people with disabilities by state and local governments; Title III is its analog for private businesses. We didn't handle issues relating to education or employment (although I once settled an employment case against the Texas Commission for the Blind that was reported in "News of the Weird" but that's a story for another day). We also didn't work on housing cases as these were handled by DOJ's Housing Section and are covered by an entirely different law called the Fair Housing Act (FHA).
Why do we have a special law for housing (FHA) that is different from the ADA? First, the FHA is older and covers quite a bit more than just disabilities. The FHA was passed as part of the Civil Rights Act of 1968-- over 20 years before the ADA-- and originally focused on racial discrimination in housing. In 1988, it was amended to protect people with disabilities and families with children. The ADA was passed two years later in 1990 and focuses only on people with disabilities. The second reason we have two laws is a bit more practical. In housing, the relationship between a business and its customer is much more long-term and may require accommodations that require planning and that are much more focused on an individual's needs. In this regard, a resident is more like an employee (also not covered by Title III) than a customer. For instance, if a resident with a disability needs a ramp installed outside their apartment, the housing provider cannot arbitrarily refuse their request-- even if the ramp that the resident wants has a slope that is gentler (and so the ramp is longer) than the ADA Standards of 1:12. But a really big distinction between the ADA and the FHA is that the resident has to pay for the ramp-- and then pay to restore the property when they leave!
But rather than dive deep into the subtle differences between the FHA and the ADA, let's cut to the chase and talk about how this applies to web accessibility! Specifically, let's talk about the FHA and ADA (as well as California's Unruh Act) apply to two different kinds of websites that housing providers typically use-- apartment rental websites and resident portal websites.
Apartment Rental Websites
The ADA Should Cover Rental Sites Just Like Other Title III Web Sites
First, let's tackle the simple part: the ADA should easily cover apartment rental pages. An apartment building rental office is a place of public accommodation as a "sales or rental establishment." The Department of Justice's Title III Technical Assistance Manual includes an interesting discussion here because it states that apartment rental offices are covered but model homes are not. While they are both open to the public, rental offices clearly fall within one of the 12 categories of places of public accommodation (i.e. "sales and rental establishments") while model homes do not. While a model home is naturally something that the sales or rental office will use, it is excluded from coverage and suggests that DOJ is being careful to strictly limit the scope of the ADA to the rental office. While the Title III Technical Assistance Manual doesn't talk specifically about the websites used by the public to rent an apartment, I nonetheless think it's pretty clear that they are covered under Title III of the ADA because the rental office is a place of public accommodation. This means that it is subject to the same "effective communication" requirements as other Title III entities-- and it is this effective communication requirement that forms the basis of the Title III web accessibility lawsuits that we see sweeping the country. And, as we all know, courts have had little trouble using the effective communication requirement of the ADA to company websites-- even though the ADA was passed long companies had websites.
Fair Housing Act Coverage Is Unclear
What's less clear is whether these websites would need to be made accessible under the Fair Housing Act. The HUD website discussing effective communication doesn't give much guidance here-- it only says that HUD-assisted residences are required to make their rental websites accessible (but that's likely because the Federal financial assistance triggers obligations under Section 504 of the Rehabilitation Act and not because of the FHA). The reason for the vagueness here is that the FHA regulations don't include the same effective communication requirement as the ADA Title III regulation. HUD's regulations on disability-based discrimination (24 C.F.R. §§100.200-.205), focuses on three basic requirements. Specifically, housing providers are prohibited from
- refusing to allow residents to make "reasonable modifications" (at their expense) to their residences,
- not making "reasonable accommodations in rules, policies, practices, or services" for their residents with disabilities (e.g. changing a "no pets" policy to allow a blind resident to have a guide dog or permitting a person with a mobility impairment to have a reserved parking location closest to the building entrance), and
- failing to design and construct facilities in multifamily residential communities with all doors and commons areas accessible to persons with disabilities and specific adaptable design features in covered dwelling units.
At the statutory level, the Fair Housing Act prohibits (1) making any statement "with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on disability" (42 U.S.C. § 3604(c)); (2) representing to any person because of disability "that any dwelling is not available for inspection, sale, or rental when such dwelling is in fact so available" (42 U.S.C. § 3604(d)); (3) discriminating in the sale or rental of or to otherwise make unavailable or deny a dwelling to a buyer or renter because they have a disability (42 U.S.C. §3604(f)(1)(A)); or (4) discriminating against any person in the terms, conditions, or privileges or sale or rental of a dwelling because the person has a disability (42 U.S.C. § 3604(f)(2)). Requirements like these are important because housing providers used to routinely discourage prospective minority residents from renting an apartment by placing ads that limited rentals to non-minorities (§ 3604(c)), by lying to them and telling them that an apartment was not available (§ 3604(d)), by requiring minorities to pay higher rents than non-minority renters (§ 3604(f)), or by withholding benefits (e.g. access to the building swimming pool) to minority residents (§ 3604(f)). But, while an inaccessible website may make it difficult or impossible for a blind user to interact with a housing provider in the same way as non-disabled user, this doesn't necessarily mean that failing to make rental websites accessible creates an FHA violation. Indeed, HUD's web page discussing discriminatory publications and advertising makes no mention of requiring the content itself to be accessible (e.g. large print, braille, etc). Instead, the focus of this HUD web page is entirely on the wording and intent of that content. And, while there aren't a ton of reported FHA cases involving websites, the few that exist appear to address more blatant claims of discrimination, such as refusing to engage in in-person communications or hanging up when the housing provider realizes the caller is disabled. See, e.g. Access Living of Metropolitan Chicago v. Prewitt, 111 F. Supp. 3d 890 (N.D. Ill. 2015).
This background suggests that a FHA claim for website accessibility would be challenging to make. And my gut says that HUD's current position also wouldn't doesn't require it. For instance, in the separate context of Limited English Proficiency (LEP), HUD recently clarified its rule to apparently require translation of documents into different languages for residents only to the extent that doing so was free or available at little cost. Just like fixing a website, translating a document is a change in the format of information while the underlying information remains unchanged. But changing a website to be accessible is rarely a low-cost endeavor-- thus suggesting that HUD would not say that the FHA requires a rental website to be accessible in the absence of other factors (e.g. a housing provider refuses to provide information over the telephone or by email).
But this analysis is all preliminary and abstract-- a different set of facts may yield a different answer. For instance, a court might require a housing provider to make its website accessible under the FHA if the resident showed that the housing provider specifically chose an inaccessible website designs because they wanted to exclude prospective residents with disabilities. Or maybe the evidence showed other facts-- like the housing provider refused to communicate by phone with users with disabilities, or charged residents with disabilities higher rents when they failed to contact them through their inaccessible web site. And, of course, there are other factors that may change the answer-- such as new regulations from HUD.
California's Unruh Act Appears to Apply to These Sites
If you happen to live in California, of course, then there's always California's Unruh Act, which we've mentioned here many times before. Back in October, I mentioned that Unruh is a much bigger threat to company websites than the ADA-- even if your business is outside California. California's Disabled Persons Act and Unruh together have a much wider scope than the ADA and includes rental housing within its scope. Martinez v. Optimus Props., LLC, 2017 U.S. Dist. LEXIS 135395 (C.D. Cal. 2017)); Marina Point, Ltd. v. Wolfson, 30 Cal. 3d 721, 731 (Cal. 1982)(noting that Unruh applies "with full force to the business of renter housing accommodations). In O'Connor v. Village Green Owner's Association, 33 Cal. 3d 790 (Cal. 1983), the California Supreme Court even found a homeowner's association to be within the scope of Unruh. Explaining the wide ambit of the law, the O'Conner court noted,
The [Unruh] act protects all persons from arbitrary discrimination in "accommodations, advantages, facilities, privileges or services in all business establishments of every kind whatsoever." (Civ. Code, § 51.) We discussed the scope of that language in Burks v. Poppy Construction Co. (1962) 57 Cal.2d 463, 468-469: "The Legislature used the words 'all' and 'of every kind whatsoever' in referring to business establishments covered by the Unruh Act (Civ. Code, § 51), and the inclusion of these words without any exception and without specification of particular kinds of enterprises, leaves no doubt that the term 'business establishments' was used in the broadest sense reasonably possible. The word 'business' embraces everything about which one can be employed, and it is often synonymous with 'calling, occupation, or trade, engaged in for the purpose of making a livelihood or gain.' The word 'establishment,' as broadly defined, includes not only a fixed location, such as the 'place where one is permanently fixed for residence or business,' but also a permanent 'commercial force or organization' or 'a permanent settled position (as in life or business).'
Business establishments covered by Unruh are required to make their website accessible to users with disabilities. Rios v. New York & Co., 2017 U.S. Dist. LEXIS 190794 (C.C.D. Cal. 2017). Thus, Unruh should similarly cover rental websites maintained by housing providers, just as the ADA covers these sites. Plus, establishing an Unruh violation is a bigger deal than proving the ADA violation, because Unruh entitles plaintiffs to three times actual damages (or, alternatively, $4,000 liquidated damages). An important point here (and which we'll come back to later) is that an Unruh plaintiff only has to show the ADA violation-- they don't have to show intentional discrimination. Munson v. Del Taco, Inc., 46 Cal. 4th 661 (Cal. 2009)(plaintiffs are not required to prove intentional discrimination in an ADA claim to be entitled to monetary damages under Unruh).
Apartment rental websites need to be accessible. This conclusion follows from Title III of the ADA and California's Unruh Act. The application of the Fair Housing Act isn't perfectly clear but coverage seems unlikely.
Resident Portal Websites
Housing providers use the Internet for more than advertising, however. Residents can pay their rent, check their accounts, and file maintenance requests through private, password-protected websites that housing providers use to communicate with their residents. But are they covered by civil rights laws?
Federal Accessibility Laws Do Not Appear to Apply to Resident Portals
Portals used by residents are not open to the public so they appear to be outside of the realm of the ADA Title III. And with the FHA's limited coverage of effective communication, these websites may be beyond Federal accessibility laws.
But, you may argue, Title III's coverage doesn't end just because a customer's interactions with a business are outside of a public context. For instance, customers with disabilities can demand access to their accounts on their bank's website or access to their health records through their doctor's patient portal. When these non-public portals are inaccessible, the place of public accommodation discriminates against its customers with disabilities. So why should a site used by residents to interact with their housing providers be any different?
The answer is that residential facilities (like apartment buildings) are treated very differently from other types of businesses. When a business is open to the public as a place of public accommodation, it inherits a lot more obligations than a landlord. For instance, places of public accommodation need to build their facilities to higher accessibility standards and need to engage in "readily achievable barrier removal". They also have to pay for all of the required changes and can't impose surcharges on their customers. While hotels and apartment buildings both provide residential services, the trigger that imposes the stiffer ADA requirements on hotels (but not apartment buildings) is whether the nature of the services distinguishes it as "transient lodging" (covered by the ADA and not FHA) instead of a residence (covered by the FHA and not the ADA). For instance, how long do people stay at the facility? Or, are there laundry and meal services available in each unit? Or, are there cleaning and linen services available for each unit? There aren't bright lines distinguishing "transient lodging" from a residence; instead, if enough factors make it look like a hotel, then it swings to the ADA side and if enough factors make it look like an apartment, then it swings to the FHA side.
While the rental office in an apartment building is a place of public accommodation and covered by the ADA, the rest of the landlord-tenant relationship is not. And, once that relationship is created, the relationship becomes subject to the FHA and not the ADA. So this suggests that a resident portal is different from a bank's non-public website for its customers or a hospital's patient portal and would likely be covered by the FHA and not the ADA-- even if it is run by the rental office.
Unfortunately, based on our earlier discussion, this means that Federal law does not create a clear requirement that resident portals must be accessible to residents with disabilities. Given the importance of these websites, this is a missed opportunity for people with disabilities. Housing is one of the most basic human needs and residents with disabilities should be able to access and keep a roof over their heads as easily as non-disabled residents. Plus, this is a risk area for all housing providers. Confusion over website accessibility requirements has fueled litigation under the ADA while discouraging companies from making their websites accessible. This frustrates both businesses and users with disabilities. Plus, greater clarity will encourage popular portals used by housing providers (e.g. Yardi, RealPage, etc) to make it easier to build and maintain accessible resident portals.
There's Always Unruh... Sort of...
If you're in California, there's always Unruh. As we discussed above, Unruh should have no trouble reaching a housing provider's website-- including a resident's portal site-- but it will likely be trickier to bring a lawsuit if these sites are likely not covered by the ADA. Why is that? In order to succeed in a lawsuit brought under Unruh, a plaintiff with a disability has one of two routes. First, if they allege and prove that their claim is also an ADA violation-- then that ADA violation is automatically also an Unruh violation. We discussed this first option in our earlier discussion about rental websites. Second, if the plaintiff can't prove an ADA violation, then they must plead and prove intentional discrimination. Harris v. Capital Growth Investors XIV, 52 Cal. 3d 1142, 1175 (Cal. 1991). What constitutes "intentional discrimination" under Unruh? Who knows? The only thing that the Harris decision made clear is it doesn't include "disparate impact." So simply showing that an inaccessible resident portal impacts users with disabilities more than it impacts residents without disabilities won't be enough. Instead, a plaintiff will have to prove other evidence of intentional discrimination. For instance, a plaintiff's attorney could try to prove that the housing provider knew that the design of its resident portal was inaccessible but used it anyways. Or that the housing provider learned about the importance of web accessibility because of recent litigation but ignored his own website. While I suspect that the threshold for pleading and proving intent may not be terribly high in these cases, it also shouldn't be trivial so the outcome all depends on the evidence and the skills of the attorneys.
Neither the ADA nor the FHA clearly require that resident portals need to be made accessible. This doesn't mean that these sites don't have to be made accessible. Laws like California's Unruh Act definitely apply; however, winning an Unruh claim for an inaccessible resident portal could be tricky.
Recommendations and Next Steps
Housing Providers Need to Make Their Public-Facing Sites Accessible
As a first priority, marketing and rental sites used by housing providers should conform fully with WCAG 2.1 A/AA. As WCAG is confusing, housing providers should hire a qualified consultant with proven expertise in meeting WCAG. Of course, housing providers should also develop strong, effective Accessibility Statements and ensure that their goods and services are conveniently available through channels other than their websites. This helps ensure that all users with disabilities-- including those who are unable to use their websites-- are protected from discrimination.
While Clarification is Needed, Resident Portal Websites Should be Made Accessible
Also, as a best practice and to avoid potential liability in this uncertain legal landscape, housing providers should also make their resident portals accessible using the same WCAG guidelines. Also, the business and the disability community should unite behind a common effort to create clear, effective requirements under the Fair Housing Act for all housing provider websites, preferably aligning with the WCAG A/AA guidelines used by governments, enforcement agencies, and private litigants. Doing so will avoid the wave of web accessibility litigation that other businesses face under Title III of ADA.
Contact Us If You Need Help!
At Converge Accessibility, we help our clients and their legal counsel understand and address issues from a technical and legal perspective. From helping your development team understand the technical requirements of WCAG to strategizing with your counsel over legal issues and litigation strategy, our combined approach is unmatched in the accessibility consulting space. If you're confused by web accessibility, reach out to us for help.
Nothing in this post should be interpreted as legal advice or as forming an attorney-client relationship. It is offered for educational purposes only. You should always contact a qualified attorney in your area to discuss your legal rights and responsibilities.
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