Very recently, more and more condominium and homeowner associations find themselves as potential defendants in Federal Fair Housing Act (the “FHA”) discrimination litigation due to the association’s website. It is alleged that the failure to make the website easily accessible to those with visual impairments or who are blind is discriminatory. In short, the FHA prohibits making, printing or publishing, with respect to the sale or rental of a dwelling, anything that indicates any preference, limitation, or discrimination based on a handicap, or the intention to make such preference, limitation, or discrimination. Thus, the FHA covers all written and oral notices or statements by a person engaged in the sale or rental of a dwelling. Therefore, as the argument presented is explained, if the association’s website is providing information regarding the sale or rental of units or lots, and proper precautions are not taken to ensure that the website can be “listened to” rather than “read” by an individual who is visually impaired or blind, then that association could be a prime target for the threat of a federal discrimination lawsuit.
Victim’s Awareness, Inc. is a national not-for-profit corporation whose membership consists of persons with disabilities and others who are committed to equal access, equal opportunity and equal rights for protected classes. Employees of this company, along with its constituent members, troll the internet searching for websites offering housing for sale or lease that do not provide a mechanism for those who are visually impaired or blind to have the content of the website automatically read to them. In order to have this functionality, what is technically referred to as a “widget” must be installed by the website host.
Typically, organizations such as Victim’s Awareness, Inc. will send a demand letter including a letter of explanation, demand for evidence preservation, and a draft copy of the to-be-filed federal lawsuit and complaint demanding that the association immediately retrofit its website to ensure equal access by the visually impaired and blind. Failure to do so guarantees a lawsuit will be filed in Washington, D.C. against the association. Typically, this type of lawsuit is extremely expensive to defend. If liability results, the damages can easily be in the tens, if not hundreds, of thousands of dollars.
Sadly, even immediate compliance may not be sufficient to avoid monetary penalties. Because the demand brings about the desired change, the would-be plaintiff, in this case, Victims Awareness, Inc., argues that they are entitled to their attorneys’ fees and costs for their preparation of the demand letter, preservation of evidence demand, and draft complaint. Therefore, even if an association complies with the demand by making its website accessible to those who are visually impaired, Victims Awareness, Inc.’s asserts that its attorneys’ fees and costs will need to be satisfied. If an association refuses, then, even though the website is now FHA compliant, Victim’s Awareness, Inc. suggests that they can still file the lawsuit to collect its attorney’s fees and costs.
Because discrimination lawsuits is one of the few areas where board members can have individual liability it is likely that most associations will fold their hand and agree to the would-be plaintiff’s demands. It will be interesting to see the results should an association decide to fight such demands on the basis that the FHA also provides that reasonable modifications must be granted by an association in response to a handicapped person’s request so long as the modification is paid for by the person making the request. It remains to be seen whether such an argument pierce the demands made by groups such as Victim’s Awareness, Inc.?
A community association risks being in harm’s way when it operates a website that promotes sales and leasing activities and is open to the public at large. In this instance the ol’ adage remains true- “an ounce of prevention is worth a pound of cure”. Thus, to find additional information on the “widget” to bring your website into compliance and to learn more about this issue you can visit www.userway.com. In addition, consider discussing this important matter with your association‘s attorney.
Jeffrey Rembaum, Esq. of Kaye, Bender, Rembaum attorneys at law, legal practice consists of representation of condominium, homeowner, commercial and mobile home park associations, as well as exclusive country club communities and the developers who build them. He is a regular columnist for The Condo News, a biweekly publication and was inducted into the 2012, 2013 & 2014 Florida Super Lawyers. He can be reached at 561-241-4462.