20 January 2011
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What do movie theaters and hotels have in common? For one thing, both movie theaters and hotels are considered “public accommodations” under the Americans with Disabilities Act (ADA) and both are required to provide disabled patrons equal access to facilities, including accessibility to movies, slideshows, and other audio and video presentations. In some instances, new technology can make it easier to achieve equal access… but it still can be a challenge.
A recent class action filed against Cinemark USA Inc. for discrimination against hearing impaired individuals due to lack of closed-captioning in theaters could have broad implications for hotels, particularly conference centers and hotels which cater to meetings and group business, in addition to hotels which cater to state organizations and governmental groups.
I was talking about this case the other day with my partner, ADA defense lawyer Marty Orlick. Marty is an expert in ADA defense and counseling, having defended owners and operators of properties in more than 450 cases. After a little collaboration, Marty put together a summary of the Cinemark case and its implications for the hotel industry. There is more to it than meets the eye.
What responsibilities do hotels have to deaf and hard of hearing guests? And what are the exceptions? How do hotels best protect themselves? How do hotels maximize business opportunities by providing auxiliary aides and services?
Ask the ADA Defense & Compliance Lawyer: Does the ADA now require all hotels to provide personal hearing or closed caption devices for deaf and hard of hearing guests? What’s next?
Marty H. Orlick | JMBM Global Hospitality Group®
In November 2010, a disability rights group launched class action litigation against Cinemark’s theaters in California on behalf of “The Association of Late Deafened Adults.” In its complaint, the group accused Cinemark of discriminatory practices against deaf and hard of hearing patrons due to its “consistent refusal” to provide closed (and open) captioned theater experiences at its theaters in Alameda County, California. Although the lawsuit is locally focused, it is of keen interest to the hotel industry and its implications are important.
The . . . ADA was created to ensure full and equal access to “public accommodations” for disabled Americans. All hotels qualify under the ADA as “public accommodations.”
Why should hotel owners be concerned? Having defended more than 400 ADA cases, I have learned that there is a well-defined core of ADA plaintiffs and lawyers. We at JMBM have seen most of them on multiple occasions. A few dozen of these people are responsible for thousands of ADA lawsuits. Hotels should be concerned because this “community” of ADA plaintiffs and lawyers spawn a huge number of lawsuits, often 5-10 per day in California alone. They tend to use “copy cat” procedures to proliferate the litigation. So once a particular cause of action has been formulated, they will copy that form of complaint and apply it to other defendants they find in the hotel directories or websites.
Remember, some of these plaintiffs may be motivated by financial recovery, but many more are genuinely committed to making the built environment more accessible for the disabled whatever the cost. The publicity of attacking high profile hotel operators and owners helps them further that cause.
A number of advocacy groups, attorneys and the Department of Justice are now focusing their resources on businesses that fail to provide effective communications aids and services to deaf, hard of hearing and blind customers. The Cinemark lawsuit is the most recent attack in this vein.
We believe that there are some strategies and approaches to minimize the attractiveness of your hotel to such an attack, and to build a strong defense if the attack comes.
While the first and easiest targets of discriminatory theater experiences may be movie, concert and performing arts theaters, the next obvious targets are hotels where meetings and conferences are held. But you don’t have to run an elaborate conference center or rely on group business meetings to be a prime target for these new ADA suits. Trust me on this, your hotel is already in the sights of these plaintiffs. This is not about whether they will attack, it is about when they will sue you.
The disability advocate group’s complaint in the Cinemark case states that “Over two-thirds (2/3) of Americans attend movies each year. Yet, without some form of captioning, countless seniors and those with hearing loss, cannot enjoy a trip to the movies because they are unable to hear or understand the dialogue.” More specifically, the plaintiffs argue that Cinemark’s discriminatory practices violate the Unruh Civil Rights Act (California Civil Code sections 51 and 52), the Disabled Persons Act (California Civil Code section 54.3), and the Americans with Disabilities Act, which prohibit discrimination on the basis of disability. All of these arguments could easily be applied to hotels with conference centers.
Closed and open captions. Closed captions can be best explained by understanding open captions, which are familiar to all of us. Open captions are on-screen text descriptions of dialogue and other sounds which are always in view and cannot be turned off. They are like subtitles you typically see at the bottom of the screen, or a sign language interpreter signing at the side of a stage. Closed captions, on the other hand, can be turned on and off by the viewer and may require a special device. Disability rights advocates insist that closed captioning, such as rear window captioning (like the one seen in the accompanying diagram), be provided to each disabled individual.
Does this apply to my hotel? The legal perspective. The ADA was created to ensure full and equal access to “public accommodations” for disabled Americans. As noted earlier, all hotels are “public accommodations.”
To ensure equal access, public accommodations must ensure that no individual with a disability may be “treated differently than other individuals because of the absence of auxiliary aids and services.” Included as examples of “auxiliary aids and services” are closed caption, rear-window captioning and open captioning for individuals who are deaf and hard of hearing. With the advances in technology, it is argued that at least one form of captioning is now required in virtually all hotel rooms, meeting rooms, bars, restaurants, and other accommodations with televised services. (FYI: Nearly all television sets built since 1993 with screens of 13 inches or more that are sold in the United States have closed captioning embedded in the television set. The closed captioning becomes visible when you use a special decoder, either as a separate box or built into the television set.)
So even the no frills, “hard economy” hotel must deal with these issues on television sets in guest rooms, as well as in a lobby or sports bar. And having the devices may not be enough if you don’t also have easy-to-read notices or cards advising guests what devices are available and how to use them. Staff, too, need to be trained on the use of auxiliary aides and services. The recent Consent Order between the DOJ and Hilton International requires proof of such staff training.
Disability rights advocates insist that closed captioning . . . be provided to each disabled individual.
Does the ADA require hotels to accommodate hearing impaired guests? In short, the answer is “yes.” By law, hotels and conference centers, as public accommodations, must provide auxiliary aids and services. However, public accommodations are not required to make every possible device available or to meet the specific, specialized needs of each individual customer. Furthermore, what is required will be shaped by the services actually offered.
Limited safeguard from unreasonable ADA standards. The ADA does have a safeguard that if provision of a particular auxiliary aid or service would result in a fundamental alteration of goods, services, or in an undue burden, i.e., significant difficulty or expense, the ADA would allow an alternative auxiliary aid or service, if one exists, which would ensure equal facilitation to the maximum extent for disabled individuals.
Thus, if the no frills hotel does not have any television sets for any rooms, it does not have to provide television sets for hearing or vision impaired guests. And, as long as that no frills hotel does not have any meeting space or equipment, it does not have to provide AV equipment for disabled guests.
Conference Centers, Meeting and Group Hotels. But that is why Jim Butler and I thought this case was particularly important for conference center hotels, and those that cater to group and meeting business. These hotels do provide a broad range of audio visual facilities for meetings, conferences, presentations, class reunions, weddings, bar mitzvahs and the like. There are often extensive sound and video projection systems, that are very reminiscent of movie theaters such as those involved in the Cinemark case.
Conference centers tend to have their meeting rooms fully-equipped with all the AV equipment “built in” and hard wired. They will be the most like the movie theaters in the Cinemark case and they will also be high profile targets for the new crop of ADA plaintiffs. But all the luxury hotels like Four Seasons, Ritz-Carlton, St. Regis, and even the large meeting hotels like so many Marriotts, Hyatts, Hiltons, Westins, Sheratons, and the like will also be attractive for these plaintiffs. Hotels that hold Bar Association and local, state and federal agency functions should be acutely aware of the need to provide the latest technological advances in auxiliary aids and services.
What auxiliary aids are required? The type of auxiliary aid or service necessary to ensure effective communication will vary in accordance with the method of communication used by the individual; the nature, length and complexity of the communication; and the context which the communication is taking place. A public accommodation should consult with individuals with disabilities whenever possible to determine what type of auxiliary aids or services are needed to ensure effective communication, but the ultimate decision of what measure to take rests with the public accommodation, provided that the method chosen results in effective communication.
Related issues. There are a host of related issues that we are advising our clients on concerning the kinds of notice (content, size, format, location, etc.) that should be given to all guests about the availability of auxiliary devices. There are also some very complex issues about what happens when AV equipment and set up is outsourced. Is the outsourced AV provider affiliated with the hotel? Does the hotel receive any financial benefit from use of the AV provider? Does the AV provider have auxiliary equipment available at reasonable prices, and do they, or does the group provide notice of availability to disabled guests? Already, we are aware of one reported case which found the event promoter and the convention center liable for not complying with federal access laws. All these issues just scratch the surface, but you get the idea.
With the advances in technology, it is argued that at least one form of captioning is now required in virtually all hotel rooms, bars, restaurants, and other accommodations with televised services.
In the case of Cinemark, plaintiffs argued that closed captioning is available and affordable to theater owners and operators. They claim the cost to outfit each theater with closed captioning is less than $10,000, a small amount for the motion picture distributor which has the highest growth in total revenues among the three largest distributors in the U.S. The same can be argued for a national flag hotel. While the case against Cinemark is in the pleading stage, we believe there are viable defenses to the lawsuit under both state and federal accessibility laws, which will undoubtedly be vigorously defended. This lawsuit is a mixture of advocacy and expanding the law, but the solution is not as simple or inexpensive as plaintiffs advocate. I will keep you updated as the case moves toward class certification.
10 questions that every hotel owner and operator should ask themselves about ADA compliance for visually impaired, deaf and hard of hearing guests:
- If your hotel meeting and conference facilities appeal to a broad range of groups or organizations, which include disabled individuals (as nearly all do), are you providing auxiliary aids and services for visually impaired, deaf and hard of hearing guests?
- Have you implemented plans to protect yourself from this type of “new frontier” ADA litigation?
- Have you had an “ADA audit” done by an expert team looking to protect your interests?
- Have you taken action to stay on top of the technology for hearing and sight impaired guests/conference attendees?
- Have you specifically investigated your hotel’s needs to provide auxiliary aids and services?
- Do you have written policies and procedures for providing auxiliary aids and services to guests/conference attendees?
- Do you have written policies and procedures for training staff on the need for and use of auxiliary aids and services for disabled guests/conference attendees?
- Do you have the necessary auxiliary aids and services on site? Are there aids and services available from sister properties if you run short?
- Do you have policies in place for testing auxiliary aids and services to be sure they are working and properly maintained?
- Do you have plans to investigate and purchase the latest in closed captioned technology?
If you answered “no” to any of these questions, or have been investigated by a state or federal authority about the types of auxiliary aids and services you offer at your hotel, contact us to discuss how you can avoid future ADA litigation.
As a safeguard for hotels and conference centers, the ADA maintains that if provision of a particular auxiliary aid or service would result in a fundamental alteration of goods, services, or in an undue burden . . .
We have seen lots of ADA case theories developed over the years, and each one fuels a new spate of lawsuits by copy cat plaintiffs. This is the time to run your ADA audit, and develop you ADA strategies and approaches. This is an area where being proactive makes a big difference. Now is the time to update your policies, procedures and training.
We can help you find economical options that will satisfy ADA requirements and ensure your patrons will be able to enjoy your hotel the way it was intended. As the battle for greater accessibility for deaf, hard of hearing, blind and low vision, and other disabled Americans continues, more ADA litigation is inevitable. Prepare now!
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:
The ADA Compliance and Defense Guide — Free Download
ADA Defense Lawyer: New ADA standards for website accessibility
Starwood Hotels and The Phoenician get an expensive (and unnecessary) lesson in ADA compliance.
DOJ sues 3 of NYC’s top Zagat-rated restaurants for ADA violations
Charles Schwab settles claim over website accessibility
A blast against frivolous, serial ADA lawsuits in striking the right balance
New ADA compliance standards for golf courses. What do they mean to you?
How to handle an ADA lawsuit . . . and How not to do it
How a recent ADA case affects all hotels but particularly conference centers and meeting hotels
Defending ADA lawsuits. How your hotel website can make you a target for ADA lawsuits
Martin H. Orlick is one of the top ADA defense lawyers in the country. He has helped hotel, restaurant, retail and other commercial property owners defend more than 500 ADA cases. In addition to defending lawsuits and governmental investigations, Marty’s team of ADA specialists focuses on enterprise-wide ADA compliance and litigation prevention, including facilities, website and operational compliance. He 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 morlick@jmbm.com.
Jim Butler is a founding partner of JMBM, and the founder and chairman of JMBM’s Global Hospitality Group® and Chinese Investment Group®. He is recognized as one of the top hotel lawyers in the world and has authored or co-authored The HMA & Franchise Agreement Handbook, How to Buy a Hotel Handbook, The ADA Compliance and Defense Guide, and The Lenders Handbook. Jim has led the Global Hospitality Group® in more than $87 billion of hotel transactional experience, involving more than 3,900 hotel properties located around the globe. Jim’s team has worked on more than 60 EB-5 projects over the past three years. 310.201-3526 or jbutler@jmbm.comThis is Jim Butler, author of www.HotelLawBlog.com and hotel lawyer, signing off. We’ve done more than $87 billion of hotel transactions and have developed innovative solutions to unlock value from hotels. Who’s your hotel lawyer?
Our Perspective. We represent hotel owners, developers and investors. We have helped our clients find business and legal solutions for 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 +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.