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For years, we have seen a wave of Americans with Disabilities Act Title III public accommodation cases.  The first wave involved places of public accommodation being sued for failure to have structural accessibility such as an elevator, a ramp, etc. for disabled patrons.  The next wave (which is still occurring and evolving) is less tangible – whether a website is sufficiently accessible for the visually or hearing impaired. 

Recently, New York City has been seeing an uptick in ADA Title III litigation involving hotel websites.  In these lawsuits, the plaintiff takes issue with the hotel reservation system, descriptions of the rooms on the website, and how rooms are reserved. 

The Law

These lawsuits are brought pursuant to the ADA Regulations codified in 28 CFR 36.302(e).  Section 36.302(e)(1) provides:

A public accommodation that owns, leases, (or leases to), or operates a place of lodging shall, with respect to reservations made by any means:

(i) Modify its policies, practices, or procedures to ensure that individuals with disabilities can make reservations for accessible guest rooms during the same hours and in the same manner as individuals who do not need accessible rooms.

(ii) Identify and describe accessible features in the hotels and guest rooms offered through its reservations service in enough detail to reasonably permit individuals with disabilities to assess independently whether a given hotel or guest room meets his or her accessibility needs;

(iii) Ensure that accessible guest rooms are held for use by individuals with disabilities until all other guest rooms of that type have been rented and the accessible room requested is the only remaining room of that type;

(iv) Reserve, upon request, accessible guest rooms or specific types of guest rooms and ensure that the guest rooms requested are blocked and removed from all reservations systems; and

(v) Guarantee that the specific accessible guest room reserved through its reservations service is held for the reserving customer, regardless of whether a specific room is held in response to reservations made by others.

Case law in this area is developing.  However, Hoteliers should ensure their reservation systems are in compliance with the regulations even though we are still not sure exactly what this means.  For instance, the website room descriptions must describe the accessibility features of each room – merely stating your rooms are “ADA compliant” is not sufficient. 

Takeaways

These cases are usually brought by “serial plaintiffs,” i.e, individuals who file multiple lawsuits against similar businesses for the same alleged violations of the law. By researching court dockets you can usually determine if the individual bringing the lawsuit is a serial plaintiff.  

Companies facing a suit like this should take immediate action to rectify any shortcomings because a copycat lawsuit may be filed quickly and both of them may have a legitimate case.  This is because the injury in these types of public accommodation cases can be easily suffered remotely by simply visiting the hotel website or in person by quickly visiting the property to determine if it complies with ADA standards.  The actual hard damages are usually close to non-existent but that does not stop the litigation.

Before you jump to comply, make sure you know how.  It is not intuitive.  You likely need an expert who can guide you through the process.  The good news is once you have done one, it should be rather easy to apply those same principles to other properties you own. 

Defending these cases are difficult because in most cases the website is quite simply out of compliance.  While only injunctive relief and attorneys’ fees can be obtained under the ADA in these types of cases, state and local laws sometimes allow for compensatory and punitive damages.  Luckily, in most cases, compensatory damages are minimal and punitive damages are unlikely.   So, the real cost is compliance and paying the attorneys’ fees for the plaintiff’s lawyer.   This galls many owners and it gets more upsetting when you see the disparity in the demands.  In a recent case we handled, this demand for attorneys’ fees was SIXTEEN times the demand for damages demanded for the plaintiff!!

Unfortunately, since the website is usually out of compliance in these cases, defendants have few options and the Plaintiffs’ bar knows this.  The result is what most hotels find to be unreasonable settlement numbers.  One approach to defend against this tactic is for the defendant to admit liability and proceed with the litigation only on the issue of plaintiff’s damages.  This approach can be beneficial for defendants because it undercuts the attorneys’ fees generated litigating the underlying liability issue.  It also highlights that the case is all about attorneys’ fees.  Maybe if a case gets to a Judge on this issue, a favorable ruling will issue, but we have yet to see this. 

So here is the final take away.  One way or the other, your website must get in compliance.  This is not a bad result.  But if you wait to be sued, you’ll still have to pay the expert and still get ready for a very frustrating case where truly the lawyers are the only ones who win. 

Brody and Associates regularly provides counsel on the ADA, as well as other civil rights issues and employment laws in general.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.