Failure of ADA Compliance by Restaurant Website, Says California Court of Appeals

Compliance to the Americans with Disability Act (ADA) and the California Unruh Civil Rights Act received a significant boost this month when the California Court of Appeals affirmed a higher court's ruling against a restaurant (Thurston vs. Midvale Corporation).

The California Supreme Court ruled that Midvale Corporation violated the Unruh Act. The ruling found Midvale's restaurant website was not usable by a blind person with a screen reader. When the plaintiff visited the restaurant's website, their screen reader software was unable to make a reservation or read the menu.

The Court of Appeal also affirmed the higher court's injunction to force Midvale to update their website to comply with the Web Content Accessibility Guidelines (WCAG 2.0).

ADA compliance is still on our radar and continues to be a hotly debated topic in the courts. Last September, the DoJ punted back to the House of Representatives with a letter asking for clarification of ADA's applicability to websites. Until the House determines proper guidelines on this topic, we can expect the courts to make judgments based on their interpretations.

Here are a few highlights from the latest Appellate Court opinions and their relationship to real estate.

Auxiliary Access to Content

Midvale argued the trial court dismissed the website's auxiliary methods of obtaining information by email and phone number. The Court of Appeals sided with the trial court by stating:

The provision of an email or phone number does not provide full and equal enjoyment of Defendant's website (42 U.S.C. § 12182(a)), but rather imposes a burden on the visually impaired to wait for a response via email or call during business hours rather than have access via Defendant's website as other sighted customers. Thus, the email and telephone options do not provide effective communication ‘in a timely manner' nor do they protect the independence of the visually impaired.

Real estate websites display property using photography, virtual tours, videos, and hyperlinks throughout their website. The use of supplemental contact points as a substitution to real-time access to content is not compliant to ADA and the Unruh Act.

Third-Party Content Providers

In Midvale's appeal, the link for more information or requesting a reservation was via a third-party reservation website. Midvale's position was that using a third party should preclude them from any liability for discrimination since requesting a reservation was not available on their website.

The Court of Appeals agreed with the trial court that the defendant could not substantiate its claim of liability. The court stated in its judgment, "appellant offers no legal support for its theory that it cannot be liable for ADA discrimination if it hires someone else to do the discrimination."

Taking one look at real estate websites, it is not hard to find third-party content. If the third-party site is not accessible to a person with disabilities, the liability falls on the real estate website. Proof of compliance is required from third-party content providers.

Web Content Accessibility Guidelines are the Gold Standard

Midvale contended the trial court referenced a non-governmental guideline which violated their due process rights. WCAG is the non-governmental guideline used by the trial court as part of the injunction. As stated earlier, this is the sticky point where the DoJ has thrown the ball back to the House of Representatives.

The California Court of Appeals did look at the precedence of previous cases from three other courts. The court opinions were, "We think the more obvious implication is that the trial court determined appellant could not or would not redesign its website to comply with ADA standards without specific guidance, and so it selected what it believed to be a widely used technical standard to provide the needed guidance."

At the time of the trial, WCAG 2.0 was the current standard. The trial court guided Midvale to use WCAG 2.0 Level AA. W3C's current version is WCAG 2.1.

The implication to real estate is simple: websites need to validate ADA compliance to WCAG 2.1 Level AA. Mobile applications need to be compliant, as well.

Summary

ADA is not going away, nor should it. It is an essential right for all people to have accessibility to a business. Here are a few tips for real estate websites:

• Photos/Images – It is no longer good enough to populate the 'alt text' attribute with "Photo of property at 123 Main Street" or "Photo of Kitchen." Accessibility tools for the disabled use the 'alt text' to describe what is in the photo.
• Hyperlinks – Lately, I have been recommending adding the title attribute to hyperlinks to let the user know where they are going.
• Video with vocal audio – Transcribe the spoken audio and provided it on the page or linked as a PDF document. You do need to make sure the Adobe PDF is set up for accessibility capabilities.

WAV Group is a leading consulting firm that supports brokerage firms, associations of REALTORS®, and multiple listing organizations with website strategy and vendor selection. We also provide brokerage firms with compliance auditing on their websites and their agent websites for MLS, IDX, and other requirements. ADA compliance is only one spur of compliance monitoring. Your privacy policy, terms of use, and GDPR/CCPA policies are also critical.

To view the original article, visit the WAV Group blog.