As you prepare for the 2021 travel season, your website reservation system’s compliance with Title III of the Americans with Disabilities Act (ADA) is probably one of the last things on your mind. Unless, of course, you’ve been the victim of one of the many ADA lawsuits that have hit hotels in the United States recently.
Claims under Title III of the Americans with Disabilities Act (ADA) take many forms, but they all flow from the same principle: Public accommodations, such as hotels, motels and other accommodations, cannot not discriminate against people with disabilities. The website reservation systems lawsuits allege that hotel owners violate the ADA because their websites, including third party websites that allow users to book rooms, such as Hotels.com, Booking .com and Expedia, do not allow reservation of accessible rooms and fail. to identify the accessible characteristics of rooms, common areas and equipment. Without the ability to book accessible rooms or determine whether a hotel has accessible features suitable for their disabilities, logic dictates that people with disabilities are denied the full and equal enjoyment of hotel services enjoyed by people without disabilities. .
FOUR CONSIDERATIONS FOR HOTEL OWNERS FACING AN ADA SUIT
If there is a threat or significance of this type of lawsuit, you should consider these questions:
1. What are the motivations of the applicant?
Most ADA Title III cases are “car” chases. That is, they are filed in large numbers in many jurisdictions by serial plaintiffs. These plaintiffs make boilerplate allegations as well as a few additional allegations tailored to each defendant. These plaintiffs cannot get damages under the ADA, but instead seek an injunction, attorney fees, costs and other litigation costs. Serial complainants generally seek to settle quickly. In settlements, defendants generally agree to pay plaintiff’s attorneys a small nuisance fee and sometimes also agree to take corrective action to comply with the ADA. Often the costs of defending the lawsuit exceed the sums for which the case can be settled, which is why serial plaintiffs often reach settlements. The elephant in the room is that serial plaintiffs and their attorneys are likely to share the proceeds of the settlement, which explains the “business” of car lawsuits.
In cases not involving serial complainants, the complainants are more than likely individuals who have a genuine interest in pursuing the merits of their claims and in achieving an outcome that includes remediation and ADA compliance. rather than a simple monetary payment. In these cases, the complaint will generally be more robust and contain detailed factual allegations that identify how the plaintiff suffered concrete harm, why the defendant’s website is broken, and what specific injunction is sought. When the cases are not serial, the objectives of the applicants may differ considerably and the defense strategy of these cases may change accordingly.
2. What are the hotel owner’s goals in defending the lawsuit?
The costs of defending an ADA lawsuit should be at the forefront of every hotel owner’s mind when threatened or served with a lawsuit. In most cases, especially those involving serial claimants, the cost of the defense will exceed the cost of the settlement, so cost-sensitive hotel owners may question whether it is in their best interests to settle the dispute. trial in its early stages without mounting a strong defense and regardless of the background.
Instead of settling quickly, hoteliers may want to mount a more vigorous defense for a variety of reasons: to avoid setting a precedent, to establish favorable case law, to deter future lawsuits, to obtain a ruling declaring the hotelier’s website reservation system ADA compliant, to avoid onerous remedial terms in a regulation or to achieve other strategic objectives. Determining which defense strategy best achieves a hotelier’s goals depends in large part on the law and the facts of each case.
Ultimately, understanding the law and the facts of the case – the merits – will make the hotel owner decide to either settle, attempt to get an immediate dismissal of the lawsuit, or defend the lawsuit on the bottom.
3. Is your hotel website compliant and what about third party websites?
Hotel owners should assess whether their websites are ADA Compliant. In other words, are the allegations in the trial true, in whole or in part? Knowing where you stand on specific trial allegations is essential in deciding how to defend a lawsuit. When assessing compliance, hotel owners should put themselves in the shoes of a person with a disability trying to book a room in their hotels. Can we reserve accessible rooms? Are accessible features of hotel rooms and common areas listed so that a person with a disability can determine if the hotel meets their needs?
When assessing the merits of a lawsuit, hotel owners should keep in mind that plaintiffs are naturally less inclined to sue defendants who may prevail on the merits. This reluctance is due in part to the fact that, in certain circumstances, a defendant may be awarded their attorneys’ fees, costs and other litigation expenses if they outweigh the merits. Thus, both sides of the trial are at risk, and plaintiffs usually choose carefully who to sue.
Prior to filing a website reservation complaint, complainants will have visited the hotel’s website and associated third-party websites that allow reservations to determine whether accessible rooms can be reserved and whether accessible features are sufficiently identified. . When hotel owners are sued for this type of claim, it is likely that the hotel’s website is clearly or possibly flawed in some respect. In this regard, plaintiffs take advantage of the vagueness of the regulations underlying the website reservation systems lawsuits, which do not specify exactly what information hotels are required to disclose.
Some courts have relied on guidance from the US Department of Justice (DOJ), which has independent authority to enforce the ADA, to interpret regulatory requirements. Still, the DOJ guidelines recognize that the DOJ cannot specify what information should be included in each case given the wide variations in accessibility that travelers will encounter. So while there are indications of what the regulations require, there is no perfect guide. Without clear expectations of what these regulations require, hotels don’t know what to do to comply, and complainants can make more easily identifiable allegations of non-compliance.
When it comes to third-party websites, hotel owners should determine what control, if any, they have over the content that third-party web domains post on their hotels. Hotel owners should also consider the parameters of their business relationship with third-party domains. What, if any, are the contract or general conditions between the third party domain and the hotel owner? If terms exist, what do they say? Which party is responsible for the information posted about the hotel owner of the hotel on the third party domain? Has the hotel owner provided any information about the hotel’s accessibility features to the third-party domain (s)?
Hotel owners should ask these questions early, as the answers will inform defense strategy. The responses will also allow hotel owners to assess what short-term steps can be taken to address the claims in the lawsuit and what long-term steps can be taken to ensure ADA compliance.
4. How will the hotel owner deter or prevent future lawsuits against the ADA?
Regardless of how a hotel owner resolves an ADA lawsuit, there is always a risk that the hotel owner will face an impersonator or a substantially similar lawsuit in the future. It is possible that such a lawsuit could be brought by the same law firm that represented the original plaintiff. When it comes to future lawsuits, hotel owners should hope for the best and prepare for the worst.
Along with defending the ADA lawsuit, hotel owners must actively take action to address any loopholes they have under the ADA. Hotel owners not only need to ensure compliance with the website reservation system regulations, but they also need to review other ADA regulations that apply to their hotels as places of public accommodation and which could underlie future lawsuits. For example, ADA lawsuits against hotel owners may relate to physical or architectural barriers, website accessibility, accessibility of mobile applications, design of points of sale or kiosks, means of transportation or parking problems. An ADA website reservation trial may be the spark a business needs to conduct an honest assessment of broader ADA compliance.
Complying with the ADA in all applicable areas will deter future lawsuits and, where appropriate, better position hotel owners to achieve a favorable outcome.
BOTTOM LINE: CONSULT AN EXPERIENCED ADVISOR
Hotel owners can better respond to ADA website reservation system lawsuits by making early cost-benefit assessments and considering the specific questions posed above. Answers to these questions will help hoteliers determine the next steps to take.
Of course, in the face of a lawsuit or the threat of a lawsuit, there is no substitute for consulting an experienced legal advisor, who can guide hotel owners on the legal path that best achieves the objectives of the hotel. the company.