Author of www.HotelLawBlog.com
28 March 2007
Hospitality Lawyers: Defending ADA claims. How lawsuits brought under the Americans With Disabilities Act (ADA) can target your website or online reservation system . . . and what you should do about it now.
A recent decision by a Federal judge has ruled that the ADA’s architectural barrier requirements can apply to websites, setting the stage for litigation. Is your hotel’s website accessible to the blind and those with impaired eyesight? If you use a third-party reservation system, are you liable if their website is not accessible?
Focus on defending against ADA Claims
The hospitality attorneys in JMBM’s Global Hospitality Group® focus on representing owners and developers of hotels, restaurants, spas, and related sports and entertainment facilities. Unfortunately, these properties are often targeted for claims under the Americans With Disabilities Act or ADA.
Fortunately for owners of hospitality properties, Marty Orlick — one of the senior members of our Global Hospitality Group and a real estate partner in our San Francisco office, is one of the country’s leading experts in ADA matters. Marty has earned a national reputation for analyzing and defending against ADA claims, and has defended more than 200 ADA cases. For more information about ADA compliance and defense, contact Martin H. Orlick at 415.984.9667 or morlick@jmbm.com. For more articles on this important area of legal defense, see the end of this article or go to https://hotellaw.jmbm.com/ada/ here on www.HotelLawBlog.com.
How can the ADA apply to web sites?
While most hoteliers are aware of how the ADA affects architectural barriers, paths of travel, parking spaces, swimming pools and even guests’ service animals, a recent court ruling has opened up an entirely new area to litigation: websites. Here are Marty Orlick’s insights into the issues and guidance on what you can do about it.
When the Americans with Disabilities Act (ADA) was enacted by Congress in July 1990, the Internet was in its infancy and few, if any, considered its applicability to cyberspace. But a San Francisco Federal judge’s recent decision not to dismiss a discrimination case against retailer Target Corporation has brought the issue to the forefront. Believed to be the first court ruling determining that the ADA’s architectural barrier requirements can apply to the Website of a private business, the stage is now set for increased ADA litigation involving Web accessibility.
Target intends to defend the lawsuit and is confident its Website and stores comply with all applicable laws. But some plaintiffs’ ADA lawyers argue that the Website for an online retail operation is an extension of the store, and because the retail operation is clearly defined in the ADA as a “place of public accommodation,” the Website is similarly required to be accessible to the public. Until now, courts have not seen it that way.
What is an “Accessible” Website?
Many consumers with visual impairments rely on the Internet as the most efficient method of making reservations and conducting personal business, such as retail purchases and financial transactions. Thus, accessible websites are more likely to drive sales to visually disabled customers. This could be a golden marketing opportunity for hoteliers that rely on the Internet as a source for guest reservations.
It is estimated that of the nearly 10 million visually impaired people in the United States, 1.5 million use assisted technologies such as screen reader technology to access Websites and communicate over the Internet. Screen reader technology converts Website text to an audio format by reading the displayed screens. Accessible Websites provide computer codes that are compatible with screen reader software.
Although the Web Accessibility Initiative and other groups have been advocating for Internet
standardization for some time – the Web Accessibility Initiative of the World Wide Web Consortium (3WC) has developed design and functional standards – no written guidelines for Website accessibility have been adopted for the private sector. The Americans with Disabilities Act Accessibility Guidelines (“ADAAG”) are currently under revision and comment, but Website “construction” is not included in the revisions.
What has changed?
Until this time, the leading case on Internet accessibility was Access Now, Inc. v. Southwest Airlines Co., decided in 2002. In that case, the plaintiffs – an advocacy group and a blind individual – sued Southwest Airlines alleging that its Website was inaccessible to visually impaired consumers using screen readers. The plaintiffs argued that Southwest’s Website violated the ADA, that the Website was a “place of public accommodation,” as defined in the ADA, and that it was not useable by visually impaired customers. (The ADA generally requires that all “places of public accommodation” and all “goods, services, facilities, privileges, advantages or accommodations” of places of public accommodation must be made accessible to disabled persons, absent undue hardship.) Many state laws mirror the ADA’s mandate.
The Court rejected the plaintiffs’ argument, holding that the defined categories of “public accommodations” in the ADA all relate to “brick and mortar” facilities. The Court also pointed out that the plaintiffs were able to access the services provided by Southwest’s Website through other sources – the telephone, ticket counters and travel agents.
The Southwest Airlines Court did, however, recognize the rapidly changing technological landscape and the explosive growth in the use of the Internet by millions of people, including those with disabilities, and acknowledged that not all courts might feel so constrained by the statutory language of the ADA to limit its application to brick and mortar accommodations. In fact, not long after the Southwest Airlines decision, a Georgia court decided that Atlanta’s public transit district was required to make its Website accessible to the blind under Title II (applicable to government programs and services). Further, the Federal Government requires that under Section 508 of the Rehabilitation Act, all federal Websites be accessible. The Federal standards and guidelines were the catalyst for disability rights groups to demand the private sector also provide Internet accommodations.
In 2004, New York State Attorney General Eliot Spitzer settled a case with two major travel Websites, Priceline.com and Ramada.com, to make their sites more accessible to blind and visually impaired users. The argument in this case was the same: that Websites are an extension of a hotel’s status as a “place of public accommodation” under the ADA. The Attorney General noted that accessible Websites are the wave of the future.
From “Drive-bys” to “Surf-bys”
For years, our law firm has defended hotels and other businesses against “drive-by” lawsuits where disability advocacy groups send a disabled “customer” to an establishment to check for a host of often very technical ADA violations. If any barriers to access arguably exist, the “customer” files a lawsuit against the establishment under the ADA and related state laws. In some cases, a single plaintiff may visit a number of hotels or restaurants in a given area on the same day, and file lawsuits against all of them claiming similar physical, psychological and emotional injuries in each instance.
Consider now, the number of Websites one potential plaintiff could visit in a day while surfing the Internet! It is no wonder there is intense concern about a potential flood of lawsuits resulting from Internet “surf-bys”.
What About Third-Party Providers?
It is a common practice for hotels to outsource their reservation system to third party service providers. But as far as the general public is concerned, reservations are being taken by the hotel itself. Can your hotel become the target of ADA cyberspace lawsuits for the practices of third party vendors? While no one knows how a court will answer this question, it is likely that sooner rather than later, plaintiffs groups will test the waters by filing additional lawsuits in these circumstances.
It is wise for hotels to confirm that the Websites of their third-party providers are accessible to those with visual impairments and the blind. Currently, Department of Justice Consent Decrees and Voluntary Compliance Agreements involving the hotel industry uniformly require hotel reservation systems to provide up-to-date information on the accessible features of their hotels. It would not be surprising to see an additional requirement for Websites to be accessible to the visually impaired and blind.
Act Now to Avoid Liability
While many hotel brands and individual properties are aware of the needs of visually impaired consumers and already provide codes within their Websites that make it possible for screenreading software to “read” their text, others have been unaware of the issue, or have been slow to act. They cannot afford to wait any longer.
The plaintiff in the Target case, the National Federation of the Blind, estimates that Target would need to spend between $20,000 and $40,000 to make its Website accessible to the visually impaired. Some think it would cost less and others believe the figure to be substantially higher. Because the technology is far from universal, the actual cost is difficult to estimate. The cost of “retrofitting” Websites will be a factor when courts consider what “reasonable accommodations” should be made to a company’s Website, if any.
But now is the time for hoteliers to review their Websites for accessibility to the visually impaired. They will also want to review the Websites of third party providers that accept reservations for their hotels. The outcome of the Target case could determine if more lawsuits regarding Website accessibility become a reality sooner rather than later. There are technological barriers to be overcome, for sure. But the end result could be a golden marketing opportunity for hoteliers to market their services to a sizeable market segment of visually impaired consumers, or the new source of accessibility litigation.
Other articles on ADA
If you found this article of interest, you may want to check out some of the other articles on this topic on www.HotelLawBlog.com which can all be found under the “HOTEL LAW TOPIC” of “ADA” at the top of the home page (or by clicking here). The following are titles and links to some of those articles:
A blast against frivolous, serial ADA lawsuits in striking the right balance
Hospitality Lawyer with urgent ADA warning: You won’t believe what they want to do with ADA now
Hotel Lawyer: How hotel swimming pools may spawn ADA lawsuits and what to do about it.
Hospitality Lawyer — Who’s crying “Woof”? What you must know about the ADA requirements for disabled guests and their service animals
Hospitality Lawyer — Landmark ADA case could provide relief for California hotels.
Hospitality Lawyer: ADA Update — Federal Courts Denying Plaintiffs’ Attorneys’ Fees
This is Jim Butler, author of www.HotelLawBlog.com and hotel lawyer, signing off. We’ve done more than $87 billion of hotel transactions and more than 100 hotel mixed-used deals in the last 5 years alone. Who’s your hotel lawyer?
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Our Perspective. We represent developers, owners and lenders. We have helped our clients as business and legal advisors on more than $125 billion of hotel transactions, involving more than 4,700 properties all over the world. For more information, please contact Jim Butler at jbutler@jmbm.com or 310.201.3526.
Jim Butler is one of the top hospitality attorneys in the world. GOOGLE “hotel lawyer” or “hotel mixed-use” or “condo hotel lawyer” and you will see why.
Jim devotes 100% of his practice to hospitality, representing hotel owners, developers and lenders. Jim leads JMBM’s Global Hospitality Group® — a team of 50 seasoned professionals with more than $87 billion of hotel transactional experience, involving more than 3,900 properties located around the globe. In the last 5 years alone, Jim and his team have assisted clients with more than 100 hotel mixed-use projects — frequently integrated with energizing lifestyle elements.
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.
Jim is frequently quoted as an expert on hotel issues by national and industry publications such as The New York Times, The Wall Street Journal, Los Angeles Times, Forbes, BusinessWeek, and Hotel Business. He is the Conference Chairman of The Hotel Developers Conference™ and Meet the Money®.
Contact him at jbutler@jmbm.com or 310.201.3526. For his views on current industry issues, visit www.HotelLawBlog.com.