07 May 2012
Hotel Lawyer ADA defense alert: Charles Schwab settles claim over website accessibility under the Americans with Disabilities Act
On May 2, 2012, Charles Schwab & Co. announced an initiative to make its website more accessible for all customers, particularly those who are blind or have sight disabilities. This high-profile development was part of the settlement of a claim by Kit Lau, a Charles Schwab customer for more than 25 years.
While many have focused on the Americans with Disabilities Act’s (ADA’s) ever-changing pool lift requirements, we continue to see the DOJ and private advocacy groups driving to enforce the original regulations promulgated 20 years ago under the ADA. As of December 31, 2011, more than 13,130 lawsuits had been filed under the ADA, and the trend continues to grow.
Here is what Marty Orlick, the head of our ADA compliance and defense group, and I think the Schwab matter may mean to you.
Charles Schwab settlement is one of 15 prominent web site settlements
Charles Schwab, one of the nation’s leading securities broker-dealers, and a disability rights advocacy attorney, announced last week that they settled a year-long claim by a blind customer that its website was inaccessible to blind, low vision and cognitively challenged customers. The structured negotiations concluded this dispute short of trial.
With this settlement, Charles Schwab joins a list of 15 prominent companies which have settled website accessibility complaints. Charles Schwab agreed that it will make its website more accessible and inclusive for all customers, and agreed to implement the Web Content Accessibility Guidelines (WCAG) Version 2.0 Level AA which will make its website navigable by disabled customers.
An informal complaint backed by the threat of litigation and administrative investigations was lodged with Charles Schwab by the lawyer for a blind day trader. The claimant was a long-time Schwab customer and herself a computer programmer. One morning, she found that she could no longer navigate the Schwab website using JAWS software and was prevented from making trades on-line. The JAWs software reads aloud the text of the page so blind and low vision customers can access the website.
No DOJ-approved standard for websites
The Department of Justice (DOJ) has not approved and adopted any formal standards for website accessibility and recently withdrew its Notice of Proposed Rule Making for web access standards. The Web Accessibility Initiative (WAI) has been working for years and has promulgated the WCAG which is widely recognized as the “gold standard” for web access. However, given the almost daily changes in technology and the complexities of cyberspace, there are no official website standards.
Most recent DOJ investigations and settlements have focused on website accessibility. Target Corp. recently paid over $6 million to settle a website ADA class action.
What does this settlement mean to you?
If you have not examined your website for ADA compliance, now is the time to do it. Not only does your website need to comply with the substantive requirements for listing hotel accessible features, for example, but the website itself needs to be accessible to disabled customers. You need to ask yourself some questions. For example:
- What standards of accessibility is your website hosting?
- How do you measure website compliance?
- How often do you audit your website for ADA compliance?
We see the Charles Schwab settlement as reinforcing the importance of ADA compliance for website accessibility as dramatically emphasized in the Hilton ADA settlement with the DOJ. In that recent landmark settlement, Hilton agreed to implement changes to its websites to make them accessible to all customers.
Wakeup call for compliance
Now is the time to audit your website and implement changes to make them accessible, if you have not taken action to make them accessible to disabled customers. Website accessibility audits are far more technical than an ADA Compliance Audit for a hotel and requires highly specialized expertise. JMBM’s ADA Compliance and Litigation Group works with experienced website compliance auditors. Since your secrets are only protected with your lawyer, you should consult with an experienced ADA attorney to help evaluate your company’s website.
Charles Schwab is implementing enhanced website accessibility features based on a time table set by a settlement agreement. If you are proactive, you can set your own time table, control the content of your website, and control your own destiny.
For more information on our preventative enterprise-wide ADA compliance program . . .
Too often we see property owners and managers get “stuck” on a single element of ADA compliance, whether that is pool lifts or web access. Don’t focus on any single element. The best approach to avoiding an ADA lawsuit is to conduct an ADA compliance and prevention survey of your business. The survey should include an assessment of the following:
- Physical facilities — the brick and mortar
- Written ADA policies, practices and procedures manual
- Reservation system compliance with best practices
- Website accessibility for blind and low-vision guests
- Staff training and competency on using auxiliary aids and services for persons with disabilities (audio and visual)
- Call center and operator training and compliance to accept the many types of Telecommunication Relay Services (TRS) used by deaf, hard of hearing and speech impaired guests and potential guests. (The U.S. Department of Justice has been particularly aggressive when it comes to enforcing hotel policies, practices and procedures regarding the effective use of TRS.)
Subpar performance on any one of these elements could mean trouble in an ADA suit.
The survey should be done under representation of an attorney, which will give the results of the survey protection under attorney-client privilege.
For more information on our enterprise-wide ADA compliance program, please contact us:
Chairman, Global Hospitality Group®
Senior Member, Global Hospitality Group®
Chairman, ADA Defense Team
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.
Below is a partial listing of articles by JMBM’s ADA Defense Lawyer team:
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Our Perspective. We represent hotel owners, developers and investors. We have helped our clients find business and legal solutions for more than $87 billion of hotel transactions, involving more than 3,900 properties all over the world. For more information, please contact Jim Butler at email@example.com 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. Jim and his team are more than “just” great hotel lawyers. They are also hospitality consultants and business advisors. They are deal makers. They can help find the right operator or capital provider. They know who to call and how to reach them.