By Charles S. Marion
While the COVID-19 pandemic dramatically reduced the number of guests staying at hotels, it has barely had any impact on the number of lawsuits being filed in which a hotel’s website is accused of violating the Americans with Disabilities Act (ADA). The majority of these cases are brought by visually impaired individuals who are not able to access certain content on the website because the site is not compatible with the assistive device or technology the plaintiff uses to navigate and obtain information from websites.
In a smaller but growing number of cases, however, disabled plaintiffs are also complaining that hotels are not providing adequate—and required—information on their websites that enable visitors looking to book a room to determine which guestrooms have what specific accommodations they need and whether certain paths of travel within the hotel—such as from the parking lot to the front desk, and from the front desk to the guestrooms—are handicap accessible. Hotel owners should take advantage of the current lull in business to work on resolving these issues, to assist their disabled customers and reduce their risk of their being sued for such claims.
Title III of the ADA provides that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation by any private entity who owns, leases (or leases to), or operates a place of public accommodation.” Public lodging—hotels, motels and inns—are one of 12 categories of “places of public accommodation” that are specifically listed as being subject to the ADA.
For many years after passage of the ADA in 1990, the focus when it came to enforcement and litigation was on the accessibility of a business’ physical structure and features to disabled individuals. However, over the last decade, with the tremendous growth in the use of the internet and e-commerce, the focus began to shift to businesses’ digital presence and, in particular, their websites. The last decade also saw the issuance of regulations governing hotels’ websites and a tremendous increase in the number of lawsuits accusing businesses’ websites of violating the ADA.
Most of these lawsuits focus on websites’ technical aspects rather than their content. For example, visually impaired plaintiffs allege that defendants’ websites are incompatible with screen-reader software they use to navigate and access the content. One common problem that arises is that when a screen reader comes across a photograph or image that does not have alt text behind it, rather than stating what information the image contains or shows, the device merely states “image” or some gibberish. Color-coded maps, inadequate color contrast, broken links and drop-down menus can also present barriers for visually impaired plaintiffs. Hearing impaired individuals frequently claim that videos on websites lack closed captioning or a text alternative. Flashing lights or similar graphics can cause problems for those who suffer from seizure disorders.
Hotel owners certainly want as many people as possible to be able to access their websites, reserve rooms online and otherwise do business with them. However, it has been difficult for owners to figure out how to proceed with improving such access, because there are no governmental laws, rules or regulations spelling out what must be done to make a website accessible. An industry trade group has helped fill this void by publishing Web Content Accessibility Guidelines (WCAG), which most courts and litigants consider the de facto or default standards for website accessibility. The best way for a hotel to insulate itself from ADA lawsuits involving the technical aspects of its website is to bring the site into compliance with the WCAG. Doing so can be a complex process, but if the owner does not have in-house personnel that can perform this work, he/she can hire an accessibility consultant to audit the website and recommend what steps can be taken to “remediate” the website. Since websites are frequently being updated with new content or features, it is important for owners to continue to monitor them to ensure that they remain in compliance.
Hotels should also include an accessibility policy on their websites with a phone number to call and an email address to use if a visitor encounters problems trying to access content. While this alone may not be sufficient to prevent or defeat an ADA lawsuit, it is a helpful step that should be taken. It will be viewed even more favorably by a court (and customers) if the phone number and email address are answered and responded to 24/7; otherwise, if a disabled individual has to wait for a call or email back during regular business hours, he/she is not being treated the same as nondisabled individuals, who can gain immediate access to the information.
In the last 18 months, a growing number of lawsuits claimed hotels’ websites violate the ADA because they do not contain the information disabled individuals need to determine what accessible rooms and other features the hotels have, and make sure they reserve rooms they will be able to access. ADA regulations requiring hotel operators to include such information went into effect in 2012, and require hotel websites to contain comprehensive descriptions of accessible features in guestrooms and on the properties in general. The hotels’ reservations systems must also be ADA-compliant and should hold accessible guestrooms for use by disabled individuals until all other guestrooms of that type have been rented. Once a disabled guest reserves an accessible room, the reservation system should further ensure that the room is blocked and removed from the system and held for the reserving customer.
Beyond the room itself, the website should inform the disabled guest whether he/she will be able to park; access the lobby and front-desk areas; and reach the room. Information should therefore be provided on the accessibility of the hotel’s entrances, registration desk, elevators, common areas, parking facilities and emergency exits, among other things. This also applies to older hotels built before enactment of the ADA that have limited accessibility features.
Taking the steps set forth above will go a long way toward protecting hotel owners from ADA lawsuits relating to the accessibility of, and content provided on, their websites.
Charles S. Marion is a partner in the commercial litigation group in the Philadelphia office of Blank Rome LLP.
This is a contributed piece to Hotel Business, authored by an industry professional. The thoughts expressed are the perspective of the bylined individual.