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Home Builder Digital Marketing Podcast Digital Marketing Podcast Hosted by Greg Bray and Kevin Weitzel

104 ADA Website Compliance - Felicia Watson

This week on The Home Builder Digital Marketing Podcast, Felicia Watson of NAHB joins Greg and Kevin to discuss the importance of achieving and maintaining ADA website compliance.

As more and more home building customers look to the internet for information and buy options, websites are at the forefront legally. Felicia explains that “People use the internet to do a lot of research, to access information, but if you have a website that someone with a disability cannot properly use, then that exposes you to liability, and so, that's why I thought this was something that was important.”

The issue of website accessibility is not going away. Felicia says “This is a trending issue. The number of cases that have increased over the last few years just continues in this field. Yes, disability rights lawyers still target the physical aspects of buildings that are not accessible, restaurants, gas stations, movie theaters, sidewalks in communities, but the other flip side of that is because so much has moved online, that is kind of fair game.”

Felicia implores home builders specifically to “Do what you can to figure out what you need to fix with your website and take those steps. Have a plan, right? You need to have a plan, assess it, and then figure out how are you going to roll out compliance.”

Listen to this week’s episode to learn about ADA compliance and how to get in front of website accessibility issues.

About the Guest:

Felicia Watson serves as Assistant Vice President with the National Association of Home Builders (NAHB’s) Office of Legal Affairs where her practice focuses on construction liability, labor, safety and health, building materials, privacy, and international trade.  She also works on compliance and litigation related to the Americans with Disabilities Act, and has written amicus curiae briefs in support of the Association and members concerning the Clean Water Act, construction liability and economic loss claims, standing in Fair Housing Act litigation, and transfer to the Multidistrict Litigation for Chinese drywall insurance coverage.  Felicia has written comments on behalf of NAHB in several federal rulemakings including softwood lumber, amending safe harbors under the Fair Housing Act, and labor, safety, and health issues.  She is a co-author of "Warranties for Builders and Remodelers" published by BuilderBooks.  Most recently, she worked with colleagues in developing a free mobile application “pocket guide” to the Fair Housing Act.

Prior to joining NAHB, she practiced law in Washington, D.C. focusing on administrative, regulatory, and civil litigation.  Felicia also served as a Deputy Prosecuting Attorney prosecuting felony domestic violence cases and providing annual evidentiary training for local law enforcement. 

Felicia is admitted to the bars of the District of Columbia and Washington, the U.S. Supreme Court, and a number of federal circuit courts of appeal. She received her J.D. from Gonzaga University School of Law and an LL.M. in International & Comparative Law from Georgetown University Law Center.  She also holds a B.A. from Seattle University.


Greg Bray: [00:00:00] Hello everybody, and welcome to today's episode of The Home Builder Digital Marketing Podcast. I'm Greg Bray with Blue Tangerine,

Kevin Weitzel: and I'm Kevin Weitzel with OutHouse,

Greg Bray: and we're excited today to welcome to the show, Felicia Watson. Felicia is the Assistant Vice President of Construction Liability and Research at the National Association of Home Builders, or NAHB. Welcome, Felicia. Thanks for joining us today.

Felicia Watson: Thank you so much for the invitation.

Greg Bray: Well, Felicia, let's start off by helping people get to know you a little bit better. Tell us a little bit about yourself and what you do.

Felicia Watson: Thanks. So, I am [00:01:00] an attorney in the office of legal affairs at the National Association of Home Builders and I work on a lot of regulatory issues, compliance issues, and also OSHA matters, the Americans with Disability Act, other things that our builder members would be focused on.

NAHB, just a little bit about the organization. We're a trade association. Our members build about 80% of all housing constructed annually in the United States, so a lot of issues that face the construction industry. It's a highly regulated industry.

Kevin Weitzel: So, let me ask you a question because I don't get this. Every lawyer I know, and I know a few, they go to school for like, I don't know, 58 years, and then they go out and get a job and earn a living. Where'd you go to school and how many years seriously did you go to school?

Felicia Watson: Well, law school, I went for my three-year Juris doctorate degree, but then I decided that wasn't enough, so I went back for what I call my fun degree, which is my master's in international and comparative law. After college, it was four additional years.

Greg Bray: A fun degree. That one just took my breath [00:02:00] away. I want to go get a fun degree. That's not a degree in fun. That was just fun to learn about.

Felicia Watson: It was fun to learn, right. It challenged my brain. You know, the law degree is to make sure that you can pass the bar. You can actually get a job and be employed, but then I wanted to really focus more on international trade issues and so I went back for another degree.

Greg Bray: So, how did you end up then in home building specifically? You know, of all the different places law can take somebody, what got you here?

Felicia Watson: After graduation, I worked in a law firm in Washington DC doing regulatory matters and this job opening came up. It looked interesting. The industry at the time home building was going crazy with work and so I thought this would be a nice fit for what I'm doing, kind of get out of the law firm environment, and so I applied, and here we are working on a variety of issues.

I guess the interesting thing, and the nice thing about working at NAHB, is I have a pretty broad issue portfolio. So, I work on the trade and compliance [00:03:00] issues. I get to work on OSHA labor, safety, and health issues, but also on other things that affect our membership. The Americans with Disabilities Act and the Fair Housing Act. So, a lot of different issues. No day is the same and that's what makes it, to me, intellectually fun and rewarding.

Greg Bray: Now, we've got a few of our listeners who were sitting here going, wait a minute, this is a marketing podcast. You're having an attorney on and they're talking about OSHA and compliance and everything else and they're confused. They think they got on the wrong podcast by accident. We haven't had an attorney on before and Kevin even hasn't shared an attorney joke on any of our episodes before. So, I'm just, maybe we'll have to do both in one day, I don't know. The reason everybody that I wanted Felicia on the show today is because she recently did some presentations at IBS about the ADA and how it impacts websites. So, that's where we're going with this. Just so everybody's clear of why we're going to have this conversation. So, Felicia, why did you want to talk about that at IBS? What is it about the ADA and websites that you feel this industry needs to know about?

Felicia Watson: [00:04:00] Sure. Thanks. So, just before we get started in the actual discussion here's my lawyer caveat. What I talk about should not be taken as legal advice, and if you have further questions, I mean, you should certainly consult with your own attorney and hopefully someone who is experienced with and familiar with the Americans with Disabilities Act.

 I selected this topic to talk about in a tech bite at the International Builders Show because I think it's important for members and for builders and people with websites to understand that the implications of not having a compliant website are pretty huge. A lot of people are not familiar with the ADA and its applicability to websites.

You know, the Americans with Disabilities Act was signed into law in 1990. So, it's been around for almost 32 years, and while the way we use computers and the internet has certainly changed and that wasn't in use when this statute was adopted. It is something that is covered and so a lot of people don't realize, well, I'm running a business. I'm a builder. I'm trying to showcase my homes. What's the best way to do that? Ding, ding, [00:05:00] ding. The internet, right? People use the internet to do a lot of research, to access information, but if you have a website that someone with a disability cannot properly use, then that exposes you to liability, and so, that's why I thought this was something that was important.

Especially after the pandemic because a lot of people were stuck at home. What did they do? They surfed the internet. They got onto the internet. They ordered goods and services through the internet. That's really the go-to place. So, I thought that that was important to really bring this issue into the awareness of builders' marketing people, salespeople to make sure that they're taking steps going forward to be compliant.

Greg Bray: In the world of the internet, because the ADA actually never had the word internet in it, right? It doesn't have web in it anywhere. The other phrase that I just want to put out there from my perspective is accessibility. In the web programming world, we don't necessarily talk about ADA compliance, we talk about accessibility and those are kind of interchangeable terms. Would you agree with that those are [00:06:00] interchangeable?

Felicia Watson: You know, I would because accessibility means that people with a variety of levels can access information, goods, services, that type of thing, so.

Kevin Weitzel: Pardon my ignorance on this because I truly don't know, but I just made the assumption as your average everyday American dude, like the blind, for example, have specialty computers that just allow them to get on the websites, but I guess that's not correct. Is it that the website has to comply and it has to have some sort of backend that suits it?

Felicia Watson: That would be correct. So, someone who is visually impaired, not necessarily completely blind, but who is visually impaired and has challenges with navigating a website, they may have specialty equipment to help them do that.

The problem is on the website development side. Now I'm a lawyer. I don't do the coding. I don't do the background and the website development, but I will tell you that if the developers and the people that put the website together don't have the appropriate coding behind the scenes that allows that website to be accessible for someone [00:07:00] that's using these tools to help them navigate, then there's a disconnect and the person who is visually impaired won't be able to navigate through the website because the coding that's behind the scenes that maybe gives them the tools to have their computer read it out loud, or translate for them, or navigate without using a mouse. They don't have that capability because the website that they're looking at doesn't have those features built-in behind the scenes, that you or I, who maybe don't have a visual impairment wouldn't need, but someone who does and has those specialty services on their computer, they can't access a website if that behind the scenes information isn't there.

Kevin Weitzel: A follow-up to that. Is it because there's no verbiage about websites or the internet on ADA laws, the onus on the home builders, or anybody's website for that matter, to suit those disabilities?

Felicia Watson: So, the Americans with Disabilities Act falls under the Civil Rights Acts, a suite of rights [00:08:00] that were adopted in the nineties. So, under the ADA they have to provide equal access to people that are using their goods or services, and so while the ADA language itself does not include the term website or even internet, the Department of Justice has taken the position that websites do need to be accessible, and that means that it has to be an equal enjoyment. It can't be an unfair access or unfair enjoyment.

So, for example, if I develop a website and I make it available to anyone who has access to the internet, I can't put a 1-800 number on there and have that be sufficient if someone who's visually impaired needs more information. They can't just rely on that 1-800 number to get access. I have to provide a site that provides equal enjoyment or equal access to the goods and services I'm selling. That's the whole purpose behind the Americans with Disabilities Act to make sure that people that have disabilities are not left out.

Greg Bray: The heart of that is equal access to information.

Felicia Watson: Correct.

Greg Bray: That's really [00:09:00] what we're getting at here, as opposed to the physical things that are usually thought of in the ADA. You're talking about ADA's 1990s, right? That's not new. Yeah. I still remember the nineties. The internet, the late nineties is really when it really started to become a thing. How come we haven't been doing this for 30 years? Why is this now become, over just the last few years, a big deal?

Felicia Watson: Well, I think because disability rights advocates really focused initially on physical access to spaces to spaces, to shops, to gas stations, libraries. Keep in mind under the ADA, the reason why we're talking about businesses here, builders' sales and marketing folks, is because they're considered a public accommodation under Title III of the Americans with Disabilities Act, and so they're providing good or service that needs to be accessible.

So, the focus was initially on physical access, but in the last few years, I'd say four, five, six years, the focus has shifted, not just from those physical spaces, but also those non-physical spaces, such as the internet websites.[00:10:00] Some of the court cases focused on, well, if you have a brick and mortar store, then your website doesn't need to be accessible. Some courts have said, that's correct. Other courts have said, no, it doesn't matter. Recently, and especially during the pandemic where everyone has really relied heavily on the internet, I think the onus needs to be for business owners to take stock at what they have, how they're providing their information, and are they making it available and accessible?

Certainly, the focus has been, with people filing lawsuits, where they really targeted a lot of companies that provide goods and services via the internet. Domino's Pizza, Blue Apron, Rite Aid recently had a settlement with the Department of Justice over access to scheduling COVID vaccines, where people with visual impairments couldn't navigate their website. So, you think about all the services that you do online. You really need to analyze what you're doing to make sure that your website doesn't get you in trouble with the government.

Kevin Weitzel: Can we change gears just for one second? [00:11:00] Can we talk about a particular four-letter word and the reason why I'm saying four-letter word is that sometimes there is a small percentage of lawyers that give the law degree a very bad name? They're like the ambulance chasers. They're the people that go to businesses and just literally slap lawsuits on them because their ADA compliancy is just a couple inches off on their sign location. Do home builders need to be concerned about, you know, these overzealous lawyers that just want to go out there and slap lawsuits on people left and right?

Felicia Watson: You know, I think they do and it's not because, you know, I would say necessarily that the overzealous lawyers are bad, but they are problematic, especially if they do what we call the drive-by lawsuits. California's really got a problem with that.

The reason why certain lawyers, not all lawyers, I'm a nice lawyer. You know, the reason why this creates a bad rap is because under the ADA you can get attorney's fees and costs. Now, the person who has been damaged by the inaccessible [00:12:00] website or the inaccessible building won't necessarily be able to get damages, but the law provides a provision where the attorneys can get their attorney's fees and costs back. So, there's actually an unintended incentivizing for lawyers to bring these lawsuits. So, this is a problem, and the other flip side of this is, as a builder or a marketing person who's selling homes, you don't want to get caught up in that because when you get that letter saying, congratulations, I'm suing you, it's already too late. You've really got to step back and say, okay, what do I need to do? What are the first things I need to do? Well, you need to consult with the lawyer because once you get contacted by a lawyer saying, there's a problem, you need to make sure that your rights are protected, but you also need to assess what's going on.

Builders need to at least be aware of this. This is a trending issue. The number of cases that have increased over the last few years just continues in this field. Yes, disability rights lawyers still target the physical aspects of buildings that are not accessible, restaurants, gas stations, [00:13:00] movie theaters, sidewalks in communities, but the other flip side of that is because so much has moved online, that is kind of fair game. It's pretty easy to check and see if your website isn't accessible. You just get screen reader software or the kind of software that allows you to scan the images on the website, and if it's not working and it's not giving information, then you know that you've got a potential problem. So, they need to be proactive.

Kevin Weitzel: That is scary because now you've just escalated a drive-by lawyer to a keyboard lawyer. They could literally sit in their office, pay a flukey to literally check website after website after website, and then just literally slap lawsuit after lawsuit, knowing that they're going to get those fees reimbursed as part of that settlement.

Felicia Watson: Right, and not only that, oftentimes they'll focus on training. Well, they have to have a plaintiff, right? So, their plaintiff will be involved, maybe a disability rights group might be involved, and then as part of that settlement, they'll require the rights group will come in and give training to all the staff, to the employees. There'll be monitoring [00:14:00] requirements. So, it's not just we reached a settlement. We fixed our lawsuit. We're good to go. There are often several years worth of compliance checks and rechecks on the website to make sure that it's good and that it's still compliant, and so that's something that people really need to be aware of.

It's not just a one and done, okay, we've settled this. We're done. It's finished. It's a continuous monitoring issue, and so you need to be aware of it. Do what you can to figure out what you need to fix with your website and take those steps. Have a plan, right? You need to have a plan, assess it, and then figure out how are you going to roll out compliance.

Greg Bray: So, Felicia, you mentioned then that there's the settlement fees to pay the plaintiff's attorneys. We've got compliance monitoring and training fees. Are there other risks that come along with this that maybe we haven't touched on yet?

Felicia Watson: Some other risks can be reputational harm, frankly. That one's really an intangible, but that could be something that is problematic. The other [00:15:00] risks are, well, how do you devote that time? The cost implications for that? Depends on how complex your website is. Do you need to hire someone to specifically monitor your website? Can you work with your developer to help you with that? I think reputational harm is one that people need to be aware of because that could be a problem. You know, the last thing you want to be is the headline on the five o'clock or six o'clock news saying, you know, this builder is a horrible person because they're not helping people access their information and content.

Greg Bray: And just to be clear for everybody, this is not a home builder-specific issue. This is all companies. Just want to make sure everybody's clear.

Felicia Watson: Oh, no, absolutely not. This is all companies. So, that's why I mentioned the sales and marketing folks, realty companies. Anybody who's offering a good or service would be a public accommodation under Title III of the ADA. That's the issue, and then the other issue piece of this is, well, how do I fix it? That's always an issue. What standard do I use to make my website compliant and that's its own can [00:16:00] of worms?

Greg Bray: I want to dig into that can here in just a second, but one question before we go there. One thing that I have seen in ADA-related law because I am not a lawyer is that sometimes you can get acceptions if it's too expensive or too onerous to comply from time to time. My understanding is, that case law has now said that being too expensive to quote fix your website doesn't cut it. Is that a correct understanding of kind of where things have landed?

Felicia Watson: So, the too expensive, too onerous, it would substantially change the way you do business. I mean, those are kind of the criteria, but we see that more, I haven't seen those in any website cases, frankly. I have seen those in remediation situations where someone will go through and rehab a building, or they will add onto a building or do remodeling to the building, and so in that instance where if it so changes the purpose, or it's so cost-prohibitive, then you may have exemptions to making it 100% compliant, but you still need to do certain [00:17:00] things, right?

With a website, how would that substantially change your business? How would that be onerous and expensive? You could do a rolling update. So, the homepage could be your first task. You could minimize the type of content you have on there. If you have a lot of videos, you're going to want to have closed-captioning or a transcript that's available for that video, and not just AI closed captioning. You need to actually have someone go through it and make sure that the text that the person is speaking is actually what is in the transcript or the closed captioning because we know that AI doesn't necessarily capture all words and certainly not acronyms.

As long as you have a plan, that is something that is important. You know, Winn-Dixie, the grocery store in the Southern states, was sued over its website, and they were saying, well, we had a plan but we haven't done it yet. Well, that's not good enough. You actually have to start taking steps to roll that out.

Domino's pizza. Dominoes are nationwide. They had a 1-800 number and initially the court said that that was an acceptable option, but then on appeal, ultimately the [00:18:00] court, the 9th Circuit said, not good enough. Just having a 1-800 number, doesn't provide that equal access, right?

 As the owner of the website for your business, you control what the content is and so you can take those steps to roll it out. Do you have to do it all at once? Not necessarily, but you have to have a plan and you have to take steps to mitigate as you develop. So, as you add new content, make sure that content is compliant. Go through, sort through your website, take down the old stuff, update it as you go, and work with your website developer to help you.

Kevin Weitzel: Alright, dumb question, but I'm the guy that gets to ask the dumb questions. Greg, I know we're talking with Felicia here, but I actually have a question for you. When you're building a website for somebody, do you say, hey, Mr. Builder or Mrs. Builder, would you like to have your website ADA compliant or do you just build them ADA compliant now and if that's the case, the follow-up question to that is if they don't do it, you shouldn't be hiring that company in the first place, correct?

Greg Bray: We now talk about it and put it in our proposals up front that says, here's what we're going to include, but here's the challenge from my [00:19:00] perspective is it takes more time and it costs more and so if I'm competing in a bid with another developer who's not talking about it, not including that time, and the builder or the client doesn't understand why that's so important, it's a little bit of a challenge for me to say, Hey, yeah, we're going to have to spend 10% more on this website to do this.

It's not like it doubles the cost, you know, it's not like that, but, yeah, it's a bit of a challenge sometimes if you're not paying attention to those fine print details of what's included and what's not. Now, granted, and Felicia, we will dive into this more, we can't guarantee everything. There's foundational pieces we can build into it, but it's not a guarantee when you get done because the client and the content that they control has a lot to do with it as well, but Felicia let's go into that a little bit further. Alright, I've been listening to this. I'm going to get sued tomorrow. Oh my gosh. How do I stop it? What do I need to do to avoid these legal issues and why is that not as easy as here's your list and move on?

Felicia Watson: Right. So, that's actually the can of worms piece of this [00:20:00] podcast and the reason that you still have risk is who decides if your website is good enough and sufficient? That's really the issue. The question, of course, is, well, what standard do I use? In the United States, we're so used to regulations telling us you need to do XYZ and M in certain circumstances, right? So, you need to do all these things.

Like the Americans with Disabilities Act, the standards for accessible design when you're building public buildings. It sets out what are your tolerances, what are your measurements, what's the ratio of the ramp entering into the building, how wide your parking spaces need to be, where are the grab bars go in your public bathroom, all of those things. The website stuff, it's a free for all, essentially.

I think I just scared Greg even more, but really the idea is who decides and so of course, everyone thinks well, Department of Justice. They enforce this. They're the government's enforcement arm, but what are the DOJ regulations say? Oh, well guess what? There aren't any regulations. The Department of Justice issued a rulemaking, a proposed rule [00:21:00] making in 2012, a long time ago, actually 10 years ago now, and they began the rule-making process. They put it out for notice and comment.

Then they brought that back in and they put it out for additional notice and comment to develop this regulation for what standards would apply and then they ultimately withdrew it from its regulatory agenda in 2017. I just checked this morning before we got on this podcast and frankly, it's not on there. It's not on there anywhere. So, there's nothing to do with websites. DOJ has consistently taken the position though that while there aren't any standards and that one standard isn't necessary. Their view is there a number of different options for compliance. Alright. So, that doesn't help me. What do I do now?

So, I'm working with my developer. I'm a builder or a salesperson or anybody else with a website for my private business, what do I do? The Department of Justice has certainly relied on, as have courts and disability rights groups, they've relied on a group called the World [00:22:00] Wide Web Consortium, who has developed content accessibility guidelines They're working on 3.0 right now.

The current standard that DOJ and others have relied on for kind of a baseline has been 2.0 AA or 2.1 AA. Interestingly, the Rite Aid settlement that I mentioned that DOJ had with Rite Aid this past year, at the end of this last year, they're using the 2.1 AA standard for their baseline for their compliance.

Well, so why should I pay attention to this? Well, the issue here is that this isn't developed through regulatory notice and comment rulemaking as most regulations are on the US. This is an international group that's developed by the international community. So, unless you have an in with this group, you haven't had any input on it, but it does give you a baseline, as I mentioned, to at least look at and assess your website. Interestingly and ironically, DOJ and the other government websites that the federal government [00:23:00] uses, they are only requiring the level 2.0 AA.

So, in recent settlements, DOJ has upped it to 2.1. When will they switch to 3.0? I don't know, but since that's still in development, that's certainly something that we want to watch. That gives you an option as one factor. The other factor is to really work with your developer.

So, Greg, you mentioned that you kind of build that into your contracts as you're working to develop your websites. That's something that people can sit down with their developer and have that discussion on. One thing that can help is, you know, you could buy the screener software and see what your website currently has. You could work with a private company to help you do an assessment.

You know, that's what my company has done. We've got an ongoing review of our website because we have so many staff that add content. We're constantly doing a monitoring to make sure that we're making it as accessible as possible. The idea of who decides, well, ultimately it's DOJ that decides in case you get sued or the court will [00:24:00] decide based on whatever private, civil lawsuit is filed against you. I would submit that you don't even want to get to that point. You want to try and avoid that because once you get in litigation it's expensive, it's costly and there's no guaranteed outcome. So, this is all stuff that you need to front-load and do your assessments when you can.

Kevin Weitzel: That's what I was going to add in that, you know when Greg said that, you know, it's roughly 10% of a website, the cost. That is a fraction of what a lawsuit would cost you.

Felicia Watson: Each lawyer will charge different things, depending on if they're a big firm or a small firm. There's all kinds of factors that play into that. What part of the country you were in? What's the expertise of the lawyer? The bottom line is when you get involved in litigation, it's going to be an expensive proposition and the other issue to think about is your insurance might not cover this.

Greg Bray: Felicia, when you talked about the thing that scares me, what I haven't seen yet and concerns me is because this is so vague, somebody gets a letter and then they go back to their web development company and says, Hey, you guys didn't do this. You have to share in my joy of this [00:25:00] process because you didn't do it right the first time and that's the part that frustrates me. That we can't define it well enough, so I can say I have delivered what you want. I have to put all these disclaimers everywhere that says it's not defined. I'm going to include these things, which will help you get there, but there's this other stuff I can't control, and so I don't know if someone else will agree that it is fully done or compliant or whatnot because it's not fully defined and it's really frustrating.

Felicia Watson: Sure. And that could be frankly, a contracting issue, right? If the client adds a lot of their own content once you build the basic website, that could certainly change any compliance tools that you've already built-in. So, if they add videos and they don't add that close captioning, or they don't provide a transcript, or they don't have the alt tags that allow the pictures that they upload to be deciphered. If they take that website that you've designed for them, and then they add it and change it, at what point do you lose control over that because your contract is finished, and so what kind [00:26:00] of disclaimers do you have to have?

So, would the builder, would the person who is contracted for the development of this website, would they have that ongoing monitoring thing? A lot of people don't want to do that. They're not thinking strategically. They're not thinking long-term and that's a discussion that builders need to think about. It's not just a one and done. I'm good to go. I've got my website. You know, wahoo, I'm finished. It's not that simple. It's something that it's, as a business person, it's part of your continual analysis of your overall risk, and your website is just one of those factors that you should be periodically reviewing to make sure that your content is still compliant, and then you reach back out to your developer and say, help me do another scan, help me check it. It's a continuous monitoring that people forget about.

Greg Bray: I think the monitoring piece is definitely something that is critical if you really want to protect yourself, right, and there are some tools that can help, but unfortunately, software scanning only really covers 25, 30% of what is [00:27:00] out there. It requires a person to look at this and to test some of these things and that it takes time and money to do that.

Felicia Watson: Yep. That's where the expense can come in. Absolutely.

Greg Bray: I guess just an example, Felicia, to help people understand some of the nuances of this and why it's so vague. We pronounce it "wicag," the WCAG, the guidelines. It's "wicag."

Felicia Watson: I wasn't even going to try that.

Greg Bray: So, but...

Felicia Watson: That's all you, Greg.

Greg Bray: Yeah, but...

Kevin Weitzel: Nerd.

Greg Bray: Yeah.

Kevin Weitzel: Man.

Greg Bray: But a...

Kevin Weitzel: Greg just showed some nerd colors right there.

Greg Bray: Yeah. There you go.

Kevin Weitzel: Just got to let you know.

Greg Bray: There you go, but one, one of the instructions is, and you mentioned this already, you have to have an alt tag on an image, and an alt tag is simply a text description of what that image is. The challenge is that software that scans can only see whether that tag exists and whether it has content. What it cannot tell you is whether the phrase in there is actually useful to someone who is visually impaired, trying to understand what this is a picture of, and what we see a lot, for example, in some of the tools like WordPress there'll be things that will drop in the file [00:28:00] name of the image by default as the alt tag and so the alt tags going to be 362.JPG, and that's totally useless from an accessibility standpoint of someone actually understand this is a picture of the Magnolia floorplan, elevation, you know, A or whatever, that needs to be in there.

So, this is where it gets so fuzzy on whether you're compliant, whether you've done enough, what's good enough, can I still get sued, all this. I don't know. I'm venting, Felicia, because you're on the legal side. Somebody used to fix this. So, these guidelines are too vague.

Felicia Watson: They are vague and that's the problem and that's something that we at NAHB, me and other attorneys in the legal department, have always been concerned about is the fact that it feels like, and is in some instances, a moving target, because there have been no regulations. There's no definitive process and steps to say, these are the minimums and they're relying, instead, the government is relying on an international community of developers who are [00:29:00] constantly changing things, and we understand the internet is constantly evolving. Software is constantly evolving. It's constantly changing, and that perhaps is why they haven't done any regulations, but on the flip side that doesn't help the people that are subject to compliance figure it out, and that's the frustrating part for us as well.

Greg Bray: Well, and I apologize for ranting a little bit there.

Felicia Watson: It's perfectly fine. It's all good.

Greg Bray: We try to leave the ranting to the guests. Felicia, you've been very generous with your time, and I could go on and talk about this for a lot longer I'm sure, but just a few other things as we wrap up. Where's this going? Any forecasting of how this may evolve over the next few years?

Felicia Watson: I think people can expect to continue to see lawsuits on websites. It started small. It's growing. I think that is something to think about. I think people need to think about how they're using their business and how they're using their website. This issue is not going away and because it's not going away I think what people need to do is be [00:30:00] as proactive as you can and have that initial assessment. Figure out, okay, what's it going to cost me? Build it into your budget and do it because it's a cost of doing business and I think that's how they have to treat this. It really is part of their overall business.

Just like they have insurance to protect their work. You have health insurance, or you have other types of things that will offset you in the event that you can't run your business. This is the same thing. I did a quick survey of information to figure out how many people actually use the internet to find homes and I found a study by the National Association of Realtors that they published in 2018 that said 44% looked online. Well, 47% of Gen Xers looked online to find a home.

Well, that's 2018 data and we're in 2022, and frankly, I think those numbers are a little low. There are a lot low, right? Yeah, and a private company published a study that indicates that in 2018, 93% of the people in the United States used online searches. Just in general, [00:31:00] 93% of the people in the United States have access to the internet and use it.

So, when you think about that number, not including, you know, what about people that just use their phones? When you think about that and what's accessible and what people can actually use, I think you're behind, if you're not at least considering this now. Lawsuits are going to continue and lawsuits are going to cost you money. You don't want to get that congratulations letter.

Kevin Weitzel: Congratulations letter. Congratulations.

Felicia Watson: You're being sued. Yeah. It's going to cost you money. Yes.

Greg Bray: I've talked to some business owners who have received letters like that and it's interesting the emotional reaction it brings up for something that they had no idea. It's one thing when you do something really wrong and okay, you made somebody angry and then they sue you, but this kind of blindsides people usually, when they get one of these cause they're not even aware they're at risk, which makes them really angry.

Felicia Watson: Right, and it's, you know what, frankly getting the notice saying that you could be sued, even if a lawsuit has not been filed yet, just the fact [00:32:00] that you're being threatened with a lawsuit, is emotionally draining and very stressful, and so that's one of those things that do what you can to avoid, if possible. It's not going away, and when I mentioned earlier that disability rights groups and private attorneys will go after these websites, that's not to demean what the disability rights groups are doing. They're focused on doing something really good. It's the drive-by lawsuits, the lawsuits for your having your sign an inch off that are very frustrating and ridiculous, frankly, and when you've got attorneys that file 500, 600, 700 lawsuits a year, you really just know that's a moneymaker.

That's not what we're focused on here. What we're really focused on is trying to get the issue out there and make people aware of it. Do an assessment. Figure out what you need to do and be as compliant as you can. That's really the takeaway.

Greg Bray: Yeah, I think that's a great point because let's not forget that these people, because they're on our websites, they're potential customers and if they [00:33:00] can't find the information because we're not taking care of these things, we're losing a customer. They're going to go to the next builder who does provide the information in a way that they can view it and consume it and make their decisions. Let's not just say it's all about angry lawyers after a buck, right? There is some real business opportunity here because it's not a small, tiny percentage of consumers that have some of these challenges. Let's not lose sight of that.

Felicia Watson: Absolutely.

Greg Bray: Well, Felicia, if people want to learn more about this issue, any suggestions on where they should go to do a little more research if they wanna understand it?

Felicia Watson: There's a lot of blog posts out there that we'll talk about this issue. ADA.gov has a lot of information, but they don't have a tremendous amount on websites, interestingly enough. So, I think it's really just doing your research, checking with companies to see who's got information, who's got resources. There's a lot of information out there. It's just using the internet to [00:34:00] figure it out. So, there's some irony there, right?

Greg Bray: For sure. Well, Felicia, again, thank you so much for sharing your thoughts and your expertise with us today. If someone's just interested in connecting with you, what's the best way for them to reach out and get in touch.

Felicia Watson: They're welcome to send me an email fwatson@nahb.org. So, happy to respond.

Greg Bray: Awesome. Well, thank you everybody for listening today to The Home Builder Digital Marketing Podcast. I'm Greg Bray with Blue Tangerine

Kevin Weitzel: and I'm Kevin Weitzel with OutHouse. Thank you.

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