ADA litigation make life inhospitable for nonconforming hotels

When you think of ADA compliance, things like wheelchair ramps, pool lifts, and handrails might come to mind; however, when it comes to website accessibility, there are a number of best practices and rules and regulations that will be at the top of those compliance issues this year. With travel season upon us, it is time for hoteliers to ensure “all” ADA compliance issues are up-to-date and employees are trained and knowledgeable in all areas of ADA regulation. Inside Counsel, Amanda Ciccatelli, points out areas you should be concerned with.

 

 

Today, many people underestimate the number of disabled people who travel, and don’t understand the difficulties disabled people face when traveling. Hotels have become targets of Americans with Disabilities Act (ADA) litigation. The U.S. Department of Justice says that many hotels contain an endless amount of potential violations.

ADA lawsuits filed against hotels could come from issues like violations at the check-in and concierge counters, guest rooms and bathrooms, parking lots, restaurants and recreational facilities. With vacation season on the horizon, hotels and resorts would be wise to make their facilities accessible now before a lawsuit forces them to do so.

Martin Orlick, Chair, ADA Compliance & Defense Group, and Jeffer Mangels Butler & Mitchell, chatted with Inside Counsel about the risks of hotels when it comes to ADA compliance, what they need to know to avoid litigation and any recent regulatory developments.

“If you are blind or have low vision and can’t make a reservation online because the hotel’s website doesn’t work with independent screen-reading software, or you use a wheel chair and the room with the roll-in shower you reserved is not available, or you are told your service dog cannot be accommodated – these are situations you can face when traveling,” explained Orlick. “These are the kind of issues that lead to private lawsuits and complaints made to the DOJ.”

The technical requirements under the ADA are complex, especially for properties that were built before many of the regulations went into effect. Architects design hotel properties without full consideration of the ADA, contractors come in behind them and try to build the hotel to those standards, and then designers come in after that.

“If the ADA requires a mirror to be 40 inches above floor, and a designer puts a 4-inch frame around it, it might look better but now the mirror is 44 inches above the floor and is in violation. Architects often fail to consider all clear floor space requirements when designing rooms,” he said. “There are architectural requirements for public spaces as well: restaurants, pools, dressing rooms, paths of travel, parking spaces.”

In addition, hotels have to have accessibility requirements for their website and reservation system. They need to have clear ADA policies and procedures, and train the staff to uphold those policies and put those procedures in place.

So, what are the exact risks of hotels when it comes to ADA compliance?

Congress intended that private litigants would primarily enforce the ADA, and hotels risk the costs of litigation, including class action litigation by private attorneys general. According to Orlick, when exposed to private litigation, it can include damages in many jurisdictions, including attorneys’ fees and costs. Starwood, Marriott, and Hilton have all been subjects of these actions. In DOJ actions, hotels can also lose control of the process of bringing their hotels into ADA compliance.

In order to avoid litigation, hotels need to know their guests and need to know how to provide services to their disabled guests. In fact, hotels should have written policies and procedures for providing goods and services with disabilities. “They need to periodically inspect their facilities for architectural barrier compliance, and routinely review their websites to be sure that they are independently useable by those who are blind or have low vision,” he explained. “When hotels perform inspections, they should consider retaining an ADA lawyer to retain the ADA experts who perform the work – this way they retain attorney work-product protection, should a lawsuit arise.”

The 2010 ADA Standards went into effect in March 2012, mandating the removal of architectural barriers. These standards prompted the wide-spread installation of pool lifts at hotels, among other huge changes. Orlick said, “The DOJ Consent Decrees with Hilton and Starwood had a major impact – they were a wake-up call for the entire industry.

When the ADA was passed, the Internet barely existed and websites were not regulated under the ADA. Recently, hotels have come under attack by advocacy groups, for lack of website accessibility. Recent court decisions, as well as positions taken by the DOJ, are beginning to require hotel and other websites to be accessible for persons who are blind or low vision.

Orlick said, “We know we will see more litigation as well as legislation in this area.”

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