"Cyber Accessibility" is the new frontier for ADA lawsuits. Your next DOJ investigation or ADA class action could be just a mouse click away!
By Jim Butler and the Global Hospitality Group®
Hotel Lawyers | Authors of www.HotelLawBlog.com
30 May 2012
Hotel ADA defense and compliance lawyer: ADA litigation over website accessibility is poised to explode.
How many lawsuits or claims have been filed by private plaintiffs and the Department of Justice (DOJ) against property owners under the Americans with Disabilities Act or ADA?
The latest figures show that more than 15,500 such ADA lawsuits or claims have been filed. And the pace is about to pick up in a big way.
My partner Marty Orlick, who heads JMBM's ADA compliance and defense team, has defended more than 500 ADA claims all over the country. Marty warns that we may be about to see a tidal wave of Cyber Accessibility claims -- lawsuits about reservation systems, hotel websites and related communications facilities.
Why could there be a big slug of these ADA lawsuits over websites? Marty says that there are several reasons:
- First, these lawsuits will be very easy for plaintiffs to work up. The plaintiffs do not need any site inspection, experts or research. They can just surf the web from the convenience of their homes or offices. Marty says the "surf by" complaints could dwarf the "drive by" ADA lawsuits that looked for missing accessible parking spaces and other readily visible shortcomings.
- Second, some owners and operators have not been paying enough attention to this issue. They have had their attention elsewhere, such as on operating fundamentals, labor costs and ADA pool lift requirements.
- Both the DOJ and private plaintiffs have had tremendous success with website accessibility lawsuits under the ADA (see the discussion below and related articles about the Hilton International consent decree and the Charles Schwab class action case), and they are growing impatient for compliance.
- In addition, a lack of clear industry standards and misinformed marketing staff have lulled some into thinking they are already in compliance when that is not so.
- Finally, some owners and operators have not recognized ADA compliance for the high priority it demands. They have not appreciated how costly ADA litigation and defense can be, and how compliance is so much cheaper than defense.
So here are some timely tips from Marty Orlick, a pro who really understands the ADA compliance and defense. . .
Cyber Accessibility -- What every hotel owner and operator
needs to know about the ADA, websites and the internet.
Martin H. Orlick, Esq. | ADA Defense and Compliance Lawyer
When the ADA was adopted in 1990, the internet was in its infancy and no one gave any consideration to what we have coined "Cyber Accessibility" -- not the U.S. Access Board, the DOJ, nor advocates for the blind. But now, with the explosion of the internet and some high profile developments we will discuss, the DOJ and advocacy groups are increasing their efforts to compel businesses to assure that their websites are accessible to the visually-disabled. "Drive-by" lawsuits are becoming so passé. Today, a DOJ investigation or lawsuit is just a mouse click away.
In our May 4, 2012 article, we alerted our readers that Charles Schwab, the nation's leading securities broker-dealer, reached a settlement with a disability rights organization in which Schwab agreed to implement the Web Content Accessibility Guidelines (WCAG) (discussed below) to assure that its website is navigable by blind and low vision clients. See, ADA compliance and defense lawyer alert: Charles Schwab settles claim over website accessibility
The Schwab settlement has far reaching implications for the hospitality industry and all other places of public accommodation. The advocacy group which threatened to sue Schwab, is led by the same attorney who, in 2000, "persuaded" the nation's leading banks to install "talking ATMs." Today, nearly every ATM in the country provides voice activated communications elements to assist blind and low vision bank customers to navigate the machines. Websites are the next frontier of ADA litigation.
THE TWO BASIC WEBSITE ISSUES FOR HOTELS.
There are basically two aspects of website access applicable to hotels; website content, and navigability by blind, low vision and cognitively disabled persons.
For guidance on the content of hotel websites we need look no further that the DOJ's recent consent decree with Hilton Worldwide, Inc. Hilton agreed to make its Reservation Systems, whether telephonic or internet-based, accessible so that that individuals with mobility and hearing disabilities can make reservations for accessible rooms, with the opportunity to guarantee the reservation. Each Hilton Brand is required to accurately update its guestroom inventory and availability in the Reservations System. The information not only must identify the types of rooms which are accessible, but for each room type, must also identify its accessibility features, such as the number of beds, size of bed(s), roll-in shower or tub, visual alarms, executive level rooms, suites and views.
NAVIGATION OF WEBSITES BY VISUALLY-IMPAIRED INDIVIDUALS.
The second issue is whether your website is useable by blind, low vision and cognitively disabled persons. It is estimated that of the nearly 10 million visually impaired people in the United States, 1.5 million use assistive technologies such as screen reader computer technology to access websites and communicate via the internet. Screen reader technology converts website text to an audio format by reading the display screens and by guiding the vision-impaired user through the website prompts.
Accessible websites provide computer codes that are compatible with screen reader software. There are more than 50 distinct screen reader software programs commonly used depending on the nature of the user's disability and their operating platforms. Selecting a program that will be best for your website requires expert consideration. Because of the sensitive nature of this technology, what may appear to be an unimportant or irrelevant feature to a website developer may make the difference in a disabled person being able to navigate your website.
In the Schwab case, the client, coincidentally a computer software developer, day traded on Schwab's website for years. For some undisclosed reason, perhaps due to changes within the website or perhaps within the client's computer system, she could no longer navigate the website and execute trades. Changes to accommodate one type of screen reader may inadvertently disable access and use by another.
The current internet environment is changing almost daily--internet sites for personal banking and third party reservation systems are now commonly accessed through mobile devices such as SmartPhones and Tablets, using a variety of browsers on an ever increasing variety of operating platforms. Cloud Computing and SaaS have created unique needs for many individuals, who in turn may utilize screen reader technology designed to accommodate their individual production environment, making a "one-size fits all" software of hardware solution very difficult to achieve.
The more likely scenario for lack of website access which prevents potential guests from accessing your website to learn about your hotel's offerings or to book a reservation online, is that your website was never designed to be accessible by persons who are blind or have low vision in the first instance.
Since the internet is a primary point of access to goods and services for many individuals, including the vision-impaired, it is hardly surprising that online accessibility has become a major focus for DOJ enforcement proceedings and private advocacy group lawsuits. Such enforcement actions and litigation can expose your business to multi-million dollar penalties, damages and substantial legal and expert fees to defend. Unfortunately, the lack of certainty in online accessibility standards has made it difficult for businesses to confidently select their technologies and rely on the advice of their third-party reservation vendors. Trusting standard website development, without involving internet accessibility specialists, will often fail to produce an accessible website.
THE WORLD WIDE WEB CONSORTIUM (W3C)
Although the Web Accessibility Initiative and other groups have been advocating for standardization for some time, no written guidelines for website accessibility have been adopted by the private sector. All that exists are conceptual aspirations which provide little certainty, especially in the presence of ever-changing technologies. Because it is far simpler for the U.S. Access Board and the DOJ to develop scoping and technical standards for the "built environment," such as parking or guestroom technical standards, than it is to develop technical standards for the ever-changing intricacies of the internet, there are currently no standard templates for website developers to follow.
The W3C publishes the WCAG, which is a broad set of web access guidelines. The WCAG is the most highly developed set of guidelines for website accessibility and is being used by the federal government and many in the private sector; however, these guidelines have not been formally adopted by the DOJ. Although the DOJ has indicated that it views the WCAG guidelines as the most comprehensive, it has not adopted them for all public accommodations.
Given the high stakes involved, and because of the 2010 ADA Standards' requirements which became mandatory March 15, 2012, it is now more important than ever for hotels to evaluate their online interface for accessibility and implement a template and protocol to develop accessible websites. Thereafter, it is equally important to regularly evaluate and update your accessibility technology. The requirement for effective communication is equally applicable to other means of communication with customers and potential customers, such as Telecommunication Relay Services (TRS) and effective auxiliary aids and services.
THE APPLICABLE LEGAL REGULATIONS
The ADA guarantees equal access for individuals with disabilities in public accommodations, like hotels, restaurants, golf courses and sports facilities. It is very important to understand that the ADA is civil rights legislation, not a national building code enforcement act.
Violations of the ADA can be enforced by the DOJ's Civil Rights Division. We have been following DOJ settlements for years. In 2011, we observed the largest DOJ monetary settlements by far. The significant exposure for failing to provide effective communicative services that are accessible to the disabled, is dramatically illustrated by recent enforcement settlements against Hilton Worldwide, Inc., Wells Fargo Bank and Bank of America. The ADA also created a private right of action for disabled individuals and advocacy groups to obtain injunctive relief (barrier removal) and attorneys fees and costs. Some states, such as California also permit a private plaintiff to recover damages.
The DOJ's policy and recent court decisions on website accessibility state that the ADA applies to public accommodations whenever they correspond or transact business via the internet. As a result, the "effective communication" rule applies to those businesses that use the internet as a means of communication for the sale of their goods and services to the public. These businesses must be prepared to present their goods and services thorough an accessible medium. It is critically important for hotels and other businesses to evaluate and implement written policies, practices and procedures for the content and navigable features of their websites.
SOME NOTEWORTHY EXAMPLES
The landscape of disabled access litigation related to online services has significantly changed and expanded over the past decade. Initially, the internet was an area of little concern as courts uniformly held that the ADA applied to "brick and mortar" facilities, not to cyberspace. This has changed and online accessibility is presently, and will continue to be, an area of significant investigation and litigation.
Some noteworthy examples include:
- In 1999 the National Federation of the Blind sued America Online because its website was inaccessible to the blind. A settlement was reached and AOL changed its website to accommodate screen reader software technology.
- In 2003, the New York Attorney General, investigated Priceline.com and Ramada.com contending that their respective websites were inaccessible to the blind and low vision customers. They too installed screen reader software.
- In October, 2007, the U.S. District Court for the Northern District of California certified a national class in National Federation of the Blind vs. Target Corp., holding for the first time that online retailers must provide website access to disabled persons. Target settled the case, paid $6 Million and agreed to install screen reader software so that online customers and potential customers who are visually impaired have access to Target's website.
- In 2010, Hilton Worldwide, Inc. entered into a comprehensive ADA settlement decree with the DOJ in which it agreed to enhance accessibility to its telephonic and internet-based Reservation Systems. In addition to paying a monetary penalty, Hilton agreed to modify and maintain all of its websites to comply with the WCAG version 2.0, Level A success criteria.
As with most businesses today, hotels communicate with their guests and potential guests through the internet. Your websites, and those of third-party booking agents put "heads in your beds." Many of these guests and potential guests are visually, hearing or cognitively disabled and rely upon the internet and screen reader software to choose hotels, plan meetings and social events and make online reservations. You need to ask yourself whether your website is designed to be accessible to the disabled public. It is good for business and, it is the law.
Unfortunately, there are no established standards for website accessibility because the DOJ withdrew its latest Notice of Proposed Rule Making for website standards. Therefore, since your secrets are only safe with an attorney, we recommend that you retain an experienced ADA lawyer with Cyber Accessibility expertise to guide you through the process. When your ADA counsel hires the website accessibility specialist, all evaluations and recommendations may remain confidential. We believe this is the most effective way to prevent costly governmental investigations and protracted litigation.
Other ADA defense and compliance resources
You can access the full library of ADA materials on Hotel Law Blog by going to the home page, selecting the tab at the top that says "HOTEL LAW TOPICS", and then clicking on "ADA Defense & Compliance" in the drop down menu . . . or by clicking here.
This is Jim Butler, author of www.HotelLawBlog.com and hotel lawyer, signing off. We've done more than $60 billion of hotel transactions and have developed innovative solutions to unlock value from hotels. Who's your hotel lawyer?
Martin H. Orlick is one of the top ADA defense lawyers in the country, having helped clients with more almost 500 ADA cases for hotels and other businesses. He predicts that "Websites are the next frontier of ADA litigation," and warns that "a DOJ investigation or lawsuit is just a mouse click away."
Marty is also is a senior member of the law firm's Global Hospitality Group®, a partner in the real estate department, and a member of the American College of Real Estate Lawyers (ACREL). For more information about ADA compliance and defense, contact Marty Orlick at 415.984.9667 or email@example.com.
Our Perspective. We represent hotel lenders, owners and investors. We have helped our clients find business and legal solutions for more than $60 billion of hotel transactions, involving more than 1,300 properties all over the world. For more information, please contact Jim Butler at firstname.lastname@example.org or +1 (310) 201-3526.
Jim Butler is a founding partner of JMBM, and Chairman of its Global Hospitality Group® and Chinese Investment Group™. Jim is one of the top hospitality attorneys in the world. GOOGLE "hotel lawyer" and you will see why.
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