Despite the pandemic, lawsuits filed across the country against hotels and resorts alleging their websites violate the Americans with Disabilities Act (“ADA”) have not slowed down. These lawsuits continue to allege two different types of ADA violations, each of which are addressed below:
The first type of website accessibility case deals with whether a hotel or other place of lodging provides a sufficient amount of information on its website regarding the accessible features of its physical property. ADA regulations require hotels to make reasonable modifications in their policies and practices to afford goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities. According to these regulations, a hotel must identify and describe accessible features in the facilities and guest rooms offered through its reservations service in enough detail to reasonably permit individuals with disabilities to assess independently whether a given facility or guest room meets his or her accessibility needs. Thus, rather than alleging that the website itself is inaccessible to users with disabilities (which will be discussed below), these website accessibility lawsuits claim that a hotel’s website violates the ADA by failing to sufficiently identify and describe the physical “brick and mortar” accessibility features of the hotel.
The promulgation of these regulations has made it easier than ever for plaintiffs to file lawsuits against hotels. Previously, even a “drive by” plaintiff had to physically go to a hotel, experience some sort of an ADA violation, and then allege an intent to return to the Hotel in order to establish standing necessary to bring a lawsuit. Now, however, Plaintiffs can sue multiple hotels on the same day from the comfort of their own home. They can file these types of lawsuits simply by claiming that they WANTED to visit a specific hotel (or multiple hotels), but were deterred from doing so and/or making a reservation because the hotel’s website, or even a third party online travel agency such as Expedia, failed to provide enough information for them to determine whether the accessibility features of the hotel meets their needs. Thus, a plaintiff can assert a claim against your hotel without ever visiting, without ever making a reservation, and without contacting you first to notify you of the alleged deficiencies on your website.
The second type of accessibility case deals with a company’s obligations to make its website accessible for individuals with visual, hearing and physical impairments. Although the ADA’s implementing regulations do not specifically apply to websites, the Department of Justice (“DOJ”) has emphasized that businesses should make websites accessible to disabled individuals by relying on a set of private industry standards developed by the World Wide Web Consortium known as the Web Content Accessibility Guidelines (“WCAG”).
As a result, most of the law regarding website accessibility has resulted from court decisions. While at first courts ruled on both sides of the issue, the recent trend has been for courts to find that businesses are required to make their websites accessible, so long as the website has a significant “nexus” to a physical location. These decisions should put companies on notice of the potential for significant legal exposure for website accessibility issues. Therefore, hotels should immediately begin testing their website’s accessibility and then implement any changes that are necessary to improve accessibility. It is essential for companies to involve legal counsel in conducting such website accessibility tests and remediation efforts in order to preserve attorney-client privilege, so that the results of these accessibility tests are shielded from discovery and cannot get into the hands of a potential plaintiff. Companies should also consider creating and/or adopting a website accessibility policy that is consistent with the requirements set forth in the WCAG, and require training and compliance with those requirements. Finally, businesses should make sure to include an accessibility statement on their website, which is a simple measure that can help show that you are making ADA compliance efforts and therefore help prevent these ADA lawsuits.
Jordan B. Schwartz, Partner, Labor • Employment Practice Group
Jordan B. Schwartz is a partner in Conn Maciel Carey’s Washington, DC office.
Mr. Schwartz advises employers on a wide range of complex employment-related issues and advises properties regarding all aspects of compliance with the Americans with Disabilities Act (ADA). He defends employers against claims of discrimination and harassment, misappropriation of trade secrets, and wage and hour violations. He also counsels employers on all aspects of the employer-employee relationship. His practice includes the following:
Title III of the ADA. Mr. Schwartz represents property owners and managers against claims brought by patrons alleging lack of accessibility under Title III of the ADA. Mr. Schwartz routinely conducts on-site inspections of properties and modifies their policies and practices to ensure compliance with the ADA. Mr. Schwartz also specializes in ensuring that company websites comply with all applicable ADA requirements.
Wage & Hour Law. Mr. Schwartz has extensive experience advising on and defending against claims under the Fair Labor Standards Act and state wage and hour laws, including issues involving minimum wage, calculation of overtime, misclassification of independent contractors, exempt status of employees, meal/rest breaks, tip pooling, automatic gratuities and service charges.
Non-compete Agreements and Trade Secrets. Mr. Schwartz litigates claims of breach of non-compete agreements and non-solicitation agreements, as well as claims of misappropriation of trade secrets and unlawful possession of confidential information. He also drafts cease-and-desist letters, negotiates restrictive covenants, and advises clients on hiring employees subject to post-employment restrictive covenants.
Harassment and Discrimination. Mr. Schwartz defends employers accused of harassment, discrimination and retaliation based on race, religion, national origin, age, sex, disability, and pregnancy. He also advises employers on the proper procedure for conducting internal investigations of discrimination and harassment claims.
Employment Counseling. In addition to his litigation practice, Mr. Schwartz counsels clients on the full spectrum of employment issues, including hiring and termination, employment and separation agreements, executive employment and compensation matters, Family Medical Leave Act (FMLA) issues, employee handbooks and manuals, reduction-in-force programs, and compliance with the WARN Act. Mr. Schwartz specializes in issues relating to drug testing and, in particular, helps employers craft appropriate workplace policies regarding employees’ use of medicinal and recreational marijuana. Mr. Schwartz also conducts training programs for his clients on harassment, discrimination, and diversity.