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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 to think about. Unless, of course, you’ve been hit by one of the many ADA lawsuits that recently hit hotels in the United States
Claims under Title III of the Americans with Disabilities Act (ADA) take many forms, but all are based on the same principle: Public accommodation places such as hotels, motels, and other accommodation cannot discriminate against disabled people. Litigation related to website reservation systems alleges that hotel owners are violating the ADA because their websites, including third-party sites that allow users to reserve rooms such as Hotels.com, Booking.com, and Expedia, do not reserve accessible rooms allow and fail to identify accessible features of guest rooms, public areas and amenities. Without the ability to book accessible rooms or to determine whether a hotel has accessible facilities that take their disabilities into account, disabled people will be denied the full and equal enjoyment of the hotel services that non-disabled people use.
Four Considerations for Hotel Owners Facing an ADA Lawsuit
If you are threatened or served with this type of lawsuit, consider the following questions:
1. What are the plaintiff’s motives?
Most Title III ADA cases are drive-by disputes. That said, they are brought in bulk by serial plaintiffs in many jurisdictions. These plaintiffs make allegations and some additional allegations that are tailored to each defendant. These plaintiffs cannot seek damages under the ADA, but instead seek injunctive relief, attorney fees, costs, and other litigation costs. Serial plaintiffs usually seek a quick settlement. In settlements, defendants typically agree to pay plaintiff’s attorneys a small nuisance sum and sometimes take remedial action to comply with the ADA. Often times, the cost of defending the lawsuit exceeds the amounts for which the case can be settled, which is why serial plaintiffs often reach an agreement. The elephant in the room is that serial plaintiffs and their attorneys are likely to share the settlement proceeds, which explains the “business” of drive-by lawsuits.
In cases where there are no serial plaintiffs involved, they are most likely individuals with a genuine interest in pursuing the merits of their claims and achieving an outcome that includes remediation and ADA compliance, rather than just cash payments. In these cases, the complaint will usually be more meaningful and contain detailed factual assertions that show how the plaintiff suffered specific damage, why the defendant’s website is defective, and what specific injunctive relief is being sought. If the cases are not serial, the plaintiffs’ objectives may differ significantly and the strategy used to defend those cases may change accordingly.
2. What are the goals of the hotel owner in defending the lawsuit?
The cost of defending against an ADA lawsuit should be a priority for any hotel owner when threatened or served with a lawsuit. In most cases, especially with serial plaintiffs, the cost of defense exceeds the cost of settlement, so cost-conscious hotel owners can consider whether it is in their best interest to settle the lawsuit at the initial stage without a strong defense and regardless of merit .
Rather than settle early, there are several reasons hotel owners may want to pursue a more vigorous defense: to avoid a precedent, to establish favorable case law, to deter future lawsuits, to obtain a decision that the hotel owner’s website reservation system is deemed compliant declared with the ADA in order to avoid burdensome restructuring conditions in a comparison or to achieve other strategic goals. Determining which defense strategy will best achieve a hotel owner’s goals depends largely on the laws and facts of the case.
Ultimately, understanding the law and the facts of the case – merits – will determine the hotel owner’s decision to either settle, attempt to immediately dismiss the lawsuit, or defend the lawsuit on the merits.
3. Is your hotel’s website compliant and what about third-party websites?
Hotel owners need to evaluate whether their websites comply with the ADA. In other words, are some or all of the claims made in the lawsuit true? Knowing where you stand on the specific allegations in the lawsuit is crucial in deciding how to defend a lawsuit. In assessing compliance, hotel owners should put themselves in the shoes of a disabled person trying to book a room at their hotel. Can barrier-free rooms be booked? Are barrier-free facilities in the hotel rooms and common areas listed in such a way that a disabled person can see whether the hotel meets their needs?
In assessing the merits of a lawsuit, hotel owners should consider that plaintiffs are naturally less inclined to sue defendants who are likely to prevail in the main. Part of this reluctance is due to the fact that, under certain circumstances, a defendant may be awarded attorney’s fees, costs, and other legal costs if the defendant is successful. Thus, both sides of the lawsuit are at risk and plaintiffs usually choose carefully who to sue.
Prior to filing a website reservation lawsuit, plaintiffs visited the hotel’s website and related third-party websites that allow reservations to be made to determine whether accessible rooms could be booked and whether accessible features were adequately identified. If hotel owners are sued with this type of claim, it is likely that the hotel’s website is either clear or flawed in some way. In that regard, plaintiffs benefit from the vagueness of the regulation underlying complaints about website reservation systems, which does 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 an independent authority to enforce the ADA, to interpret the requirements of the regulation. However, the DOJ guidelines recognize that the DOJ cannot specify what information must be included in each case, as accessibility for travelers will vary widely. So while some guidance exists on what the regulation requires, there is no perfect guide. Without clear expectations of what this regulation requires, hotels are left in the dark about what to do to comply and plaintiffs can make more colorable claims of non-compliance.
For third-party websites, hotel owners should consider what control, if any, they have over the content that third-party web domains post about their hotels. Hotel owners should also consider the parameters of their business relationship with third-party domains. What contracts or terms and conditions, if any, exist between the third-party domain and the hotel owner? If concepts exist, what do they mean? Which party is responsible for information posted about the hotel owner’s hotel on the third-party domain? Has the hotel owner provided the third-party domain (s) with information about the hotel’s accessibility features?
Hotel owners benefit from asking these questions promptly as the answers influence defense strategy. The responses will also enable hotel owners to assess what short-term steps can be taken to dispel the allegations of the lawsuit and what long-term steps can be taken to ensure compliance with the ADA.
4. How will the hotel owner deter or prevent future ADA lawsuits?
Regardless of how a hotel owner resolves an ADA lawsuit, there is always a risk that the hotel owner may face a copycat 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 first plaintiff. Regarding future lawsuits, hotel owners should hope for the best and prepare for the worst.
In parallel with defending the ADA lawsuit, hotel owners should actively take steps to correct any deficiencies they may have under the ADA. In addition to ensuring compliance with the website reservation system regulations, hotel owners should review other ADA regulations that apply to their hotels as places of public accommodation and which may underlie future litigation. For example, ADA lawsuits against hotel owners may involve physical or architectural barriers, website accessibility, mobile app accessibility, point of sale or kiosk design, transportation accommodation, or parking issues. An ADA website reservation lawsuit may be the spark it takes for a company to make an honest assessment of ADA compliance.
Adhering to the ADA in all applicable areas will deter future lawsuits and, if necessary, better position hotel owners to achieve a favorable outcome.
Conclusion: Consult an experienced advisor
Hotel owners can better respond to legal disputes with the ADA website reservation system by making cost-benefit and performance assessments early and considering the specific questions raised above. The answers to these questions will help hotel owners determine what next steps to take.
Of course, when it comes to a lawsuit or threat of lawsuit, there is no substitute for the advice of an experienced legal advisor who can guide hotel owners on the legal path that best achieves business goals.
For more information on this topic or to find out how Godfrey & Kahn can help, please contact a member of our Litigation Practice Group.
The content of this article is intended to provide general guidance on the subject. Expert advice should be sought regarding your specific circumstances.
