We previously warned the hospitality industry about the inevitable explosion of the ADA website lawsuit filed against hotels. Well that time is here.
In 2020, there were a number of lawsuits against those in the hotel industry alleging 28 CFR Section 36.302 (e) of the American With Disabilities Act (ADA), which required hotels to list their accessible features on their list need websites, as well as online travel agency (OTA) websites such as Travelocity, Orbitz, hotels.com, etc. We anticipate this surge in litigation will continue well into 2021.
Whether you are a national “flag” or a small hotel portfolio owner, your hotel properties and websites are governed by ADAS, CFR Section 36.302 (e) of 2010. This section of the ADA has been in effect and required since March 15, 2012 by hotels to describe in sufficient detail the accessible features in hotels and guest rooms that are offered through their reservation services that people with disabilities can adequately assess whether a hotel or guest room meets their accessibility needs.
While most hotel systems have policies, practices, and procedures in place to ensure they comply with Section 302 (e), many others have not adequately met the requirements. These requirements can be very difficult to implement, and there is a very tight balance to keeping the rule without opening your property to ADA litigation.
Why the increase in lawsuits?
From the last quarter of 2020, there has been a dramatic increase in the number of ADA website lawsuits, even surpassing Title III architecture barrier cases. Despite the COVID-19 pandemic, plaintiffs ADA law firms have filed more than 100 Section 302 (e) cases against California hotels. These cases were filed against a growing number of long-time customers of the company by a handful of plaintiffs who claim they intend to visit these hotels once travel restrictions on COVID-19 are lifted. We see many of the well-known plaintiffs who appear to have shifted their attention from architectural barrier cases to Section 302 (e) litigation.
There appear to be several main reasons for this shift. First, many hotels have failed Section 302 (e) after nearly 9 years. Second, in the world of high-speed, high-volume ADA litigation, it is far easier and far cheaper for plaintiffs to file cases from ADA websites than it is to pay to have an ADA consultant hired out every hotel they sue want to physically inspect. To conduct Rule 11 due diligence on Section 302 (e) cases, all one needs to do is visit the Defendant’s website or the websites of its OTAs for a quick review of compliance. These savings have a direct impact on the bottom line and speed up complaint filing.
Section 302 (e) cases can be won
In some jurisdictions, federal judges are dismissing Section 302 (e) cases filed from serial litigation for failing to credibly claim that Article III actually qualified the lawsuit. (See The court dismisses the malpractice complaint – to prove again that these cases can be won.)
