Most websites for housing providers and other businesses should be accessible to individuals with disabilities. But how is this enforced? On September 25, 2018, the U.S. Department of Justice issued a letter to a member of the U.S. House of Representatives in which it took the position that “noncompliance with a voluntary technical standard for website accessibility does not necessarily indicate noncompliance with the ADA.” The DOJ’s position, significantly, does not require conformance with the voluntary Web Content Accessibility Guidelines (WCAG) 2.0 to comply with the ADA in all instances. The DOJ expressly allows for flexibility in how individuals with disabilities are provided access to digital and online content, but does not provide guidance in the implementation of such flexibility.

The DOJ’s letter responds to a June 2018 inquiry from members of the House of Representatives from both parties, which asked the DOJ to “state publicly that private legal action under the ADA with respect to websites is unfair and violates basic due process principles” absent clear guidance from the DOJ on website accessibility. In its response, the DOJ noted that for more than 20 years, the DOJ has interpreted the ADA to apply to websites of places of public accommodation. The DOJ’s response also clarified that the absence of a specific regulation does not mean that websites are not subject to the ADA’s accessibility requirements. The DOJ indicated in its letter a willingness to work with Congress on legislative action to address the increased website accessibility litigation risk faced by businesses.

The flexible approach to website accessibility expressed by the DOJ provides businesses with additional opportunities to review ADA accessibility compliance programs, as well as responses to increased litigation risk regarding the accessibility of websites.

Attorneys in Ballard Spahr’s Accessibility Group regularly assist housing providers and other clients in defending against website accessibility demand letters and litigation, and advise clients on ADA accessibility policies and procedures.

Earlier this month, the U.S. Department of Justice (DOJ) and Kent State University (KSU) settled claims of discrimination under the Fair Housing Act (FHA) related to the use of emotional support animals in university housing. KSU and its employees were charged with disability discrimination for failing to allow a student who suffered from a psychological disability to keep an emotional support dog in her university apartment as a reasonable accommodation.

Although KSU’s “no pet” housing policy provided an exception for trained service dogs under the Americans with Disabilities Act, it violated the FHA’s broader reasonable accommodation rules which allow for the use of any kind of animal (including comfort animals) to treat the effects of a person’s disability. The U.S. District Court for the Northern District of Ohio held that because the FHA’s definition of a dwelling applied to student and university-owned housing, KSU was also obligated to follow the FHA’s guidance to determine whether to approve the use of an emotional support animal as a reasonable accommodation.

As part of the settlement, KSU agreed to adopt a new housing policy and to pay $145,000 that will be apportioned among former students previously denied reasonable accommodations for emotional support animals, a fair housing organization, and the United States. For more information on the case and settlement, see the recent Legal Alert prepared by members of Ballard Spahr’s Housing and Higher Education groups.

With only very limited exceptions, the Fair Housing Act applies to nearly all rental units in the United States, regardless of whether they are privately or publicly funded. HUD-assisted housing must observe additional fair housing and accessibility requirements. Housing providers should consider reviewing their policies for emotional support animals and ensuring that they comply with all the fair housing requirmenets applicable to their properties.

According to a recent Department of Justice (DOJ) settlement, some pets are allowed in the house. HUD filed and settled a civil rights lawsuit against RiverBay Corporation, a New York City-based affordable housing cooperative manager that owns and operates 15,372 residential units – the largest housing cooperative in the country, claiming the company maintained no-pets policies violating Fair Housing Act and Americans with Disabilities Act (ADA) guidelines for accommodating individuals with disabilities.

In light of the settlement’s complexities, the DOJ issued new guidance on ADA distinctions of service animals and their purpose, and clarified requirements for accommodating individuals who need them. The guidance restates that government agencies, public-serving businesses, and nonprofit organizations must comply with ADA service animal requirements, but also emphasizes that institutions of higher education should consider all efforts to remain compliant with ADA standards while balancing to the equal access needs of students with allergies on campus and in dormitories. The DOJ provides additional information that clarifies questions businesses and property managers may have regarding public health and safety concerns for service animals accessing pool grounds, open food areas, and hospital facilities.

While there are likely to be future concerns and developments regarding ADA requirements for service animals, it is important to remain mindful of the way private policies relate to the access and compliance standards set forth for those with service animals. Please see our legal alert for additional considerations and discussion points.