The Fair Housing Act and Website Accessibility Lawsuits
I’ve had several real estate agents from Florida ask me about the Fair Housing Act (FHA), the Americans with Disabilities Act (ADA), and website accessibility.
Here’s how these three items play out:
The FHA and ADA are both federal civil rights laws designed to prevent discrimination.
The FHA is designed to prevent all types of discrimination including on the basis of disability. Obviously, the ADA is strictly concerned with disability.
For our purposes, the main distinction is Title III of the ADA applies to places of public accommodation such as gyms, restaurants, retail stores, museums, hotels, schools, barber shops, etc. whereas the FHA deals strictly with housing.
So think of the ADA as applying to entities who are open to the general public and the FHA as applying to entities who lease, rent, or sell housing to individuals.
(Real estate agents, realtors, brokers, property managers, owners, landlords, etc. are all examples of professionals who fall under the FHA).
Website Accessibility Under the FHA
There is nothing in either the ADA or FHA that explicitly mandates website accessibility.
However, through plaintiffs’ lawyers demand letters and lawsuits and court rulings, the legal landscape dictates that practically you should make your website accessible whether you fall under the ADA or FHA.
The Law
Here’s a good Fair Housing Act summary posted on ADA.gov:
The Fair Housing Act, as amended in 1988, prohibits housing discrimination on the basis of race, color, religion, sex, disability, familial status, and national origin. Its coverage includes private housing, housing that receives Federal financial assistance, and State and local government housing. It is unlawful to discriminate in any aspect of selling or renting housing or to deny a dwelling to a buyer or renter because of the disability of that individual, an individual associated with the buyer or renter, or an individual who intends to live in the residence. Other covered activities include, for example, financing, zoning practices, new construction design, and advertising.
If we focus in on the two parts that read, “it is unlawful to discriminate in any aspect of selling or renting housing” and “other covered activities include…advertising”, it’s easy to see how having an inaccessible website is a problem.
The actual law for this is Sec. 804.[42 U.S.C. 3604] Discrimination in sale or rental of housing and other prohibited practices:
It shall be unlawful:
(C) To make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin, or an intention to make any such preference, limitation, or discrimination.
If you’re in Florida, you’ll commonly see this in conjunction with Section 760.23(3) of the Florida Fair Housing Act which says the same exact thing.
Thus, when you have a website that is involved in the sale or rental of a dwelling (house, apartment, home, condo, etc.) and that website is inaccessible, then an argument can be made that you have discrimination under both the Federal Fair Housing Act and the Florida Fair Housing Act.
What Should You Do?
To formally address accessibility, the short answer is to remediate (fix) your website so that it is in conformance with WCAG 2.0 AA, or even better, WCAG 2.1 AA.
WCAG isn’t the law, rather it’s something courts and the DOJ have looked to in determining whether a website is accessible.
FHA demand letters have surged in Florida but they’re on the rise across the United States as plaintiffs’ lawyers continue to hammer away at website accessibility under the ADA, FHA, and various state laws.
Whether or not a technical violation of the FHA (or ADA, for that matter) has occurred if a website is inaccessible is up for interpretation, but it’s best to avoid the legal debate and the associated costs that come with it.
