Karen Kidd Jul. 8, 2016, 1:10pm

CHICAGO – New Americans with Disabilities Act regulations specific to websites aren't expected until 2018, but even small companies, including real estate agencies and brokerages, with a minor online presence have been hit with threats of possible lawsuits from plaintiffs' lawyers representing those with disabilities, two Chicago attorneys said.

The requirements of the federal disabilities law covers much more than just handrails and restroom access, said real estate attorneys Paige Krause and Chad Poznansky.

"Title III of the ADA prohibits discrimination on the basis of a disability in 'places of public accommodation' and requires compliance for these places as well," Krause and Poznansky said in a joint email responding to questions from the Cook County Record. "With the proliferation of the internet, most businesses with an internet presence can be interpreted as a public accommodation (ex., anyone who uses the internet for their services) and can be subject to ADA compliance and should worry about actions related to website accessibility for people with disabilities."

Krause is an associate, while Poznansky is a member in the Real Estate Group of the Chicago office of law firm Clark Hill.

It's the type of business, not its size, that potentially could subject a company to this type of litigation, Krause and Poznansky said.

"One suggestion for smaller business would be to contact their website providers and see if they have a basic accommodation package that can be utilized to bring their websites in compliance," they said.

Some of this is not new. The U.S. Department of Justice long has considered websites to be places of public accommodation under Title III of the ADA, which applies to businesses. In 2010, the DOJ issued its Justice Department ADA Advance Notice of Proposed Rulemaking, which targeted business that rely heavily on the internet.

The real estate brokerage industry has been especially vulnerable, Krause and Poznansky said.

More than 90 percent of real estate firms have websites with property listings being the most common feature of those websites, the National Association of Realtors reported last fall. Real estate agents also use mobile devices as part of their job and the primary means of communicating with their clients, the Realtor association reported.

Realtor.org issued a report which found 42 percent of recent buyers, as their first step looking for a home, searched online for properties for sale. The same report found 82 percent of recent homebuyers found online websites contained useful information for their house search.

With those statistics and more, it naturally follows that people with disabilities require the same online access as those who are not disabled - and they are increasingly willing to go to court to get it, Krause and Poznansky said. Many real estate agents have been receiving demand letters, with litigation threats, alleging their websites are not ADA compliant. That prompted a letter in April from National Association of Realtors President Tom Salomone to the DOJ asking for guidance.

"The particular real estate companies which were sent demand letters have not yet been named," Krause and Poznansky said. "If a lawsuit follows the demand letter, the companies will be disclosed. Both large and small companies could be targeted because they are providing similar services."

Other businesses besides real estate brokers, agencies and listing services could run into this kind of ADA legal trouble, Krause and Poznansky said.

"Because the definition of 'public accommodation' is broadening, basically any business that utilizes the internet for its services should be cautious," they said. "The basic idea is that you are not allowed to cause someone with a disability to take more steps to obtain your services than someone without a disability."

Krause and Poznansky speculated that because larger companies are more popular and more people are utilizing their services, they would be at greater litigation risk.

Complicating matters is the DOJ's delay in issuing regulations. The Department of Justice has delayed until 2018 regulations that are specific to websites, which has helped drive the rising number of cases filed until Title III of the ADA. That means the litigation risks for companies is very real, Krause and Poznansky said.

"The DOJ’s guidelines are not expected to be issued for another year and a half, and companies are already being sued," they said. "More and more real estate companies are receiving demand letters. The National Association of Realtors has reacted to the recent demand letters by requesting prompt guidance from the Department of Justice to help with ambiguities in the law."

There also are no rules governing who could be a targeted for these legal actions, Krause and Poznansky said. 

"The internet did not exist when the ADA was enacted; however, because the internet is heavily used by businesses today, a 'place of public accommodation', which must comply with the ADA, is being interpreted very broadly and is in effect expanding the scope of businesses required to comply with the ADA,"  Krause and Poznansky said.

It is not yet clear whether the parties that received demand letters have been subsequently sued for non-compliance. However, there are several companies - Netflix, Target, AOL, Southwest Airlines, Facebook, among others - which have been sued because their websites did not conform to the ADA. A few plaintiffs have succeeded in their cases.

Krause and Poznansky recommended any businesses receiving demand letters seek legal counsel from attorneys knowledgeable in ADA compliance issues, as well as of the U.S. Access Board’s guidelines and standards.

"Businesses should proactively make the necessary changes to their website in order to avoid receiving a demand letter, and potential legal action," Krause and Poznansky said.

This issue isn't going to wait, so businesses with a website should act now by conducting an accessibility audit and seeking advise about implementation of programming changes to bring  the website into compliance with ADA standards, Krause and Poznansky said.

"It is only a matter of time until these changes will be mandated and companies are already being targeted," Krause and Poznansky said. "So it would help the business avoid future liability and provide an opportunity to broaden its potential client base."

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