The biggest threat now facing smaller hotels and B&Bs (both independent and franchised) is the tidal waive of claims and lawsuits alleging that the property’s website does not meet the requirements of the Americans with Disabilities Act (ADA).
There are a number of disabled people and their lawyers (perhaps most notable are Peter Strojnik, Joseph Manning Jr., and Babak Hashemi) who have initiated hundreds of claims and lawsuits. These individuals just sit back, look at hotel, and B&B websites, and sue if they believe the website is not ADA compliant. The sad fact is that most properties that are sued have little choice, but to pay up and avoid the costs of a lawsuit.
Claims involving allegedly noncompliant websites generally involve two issues.
Failure to Identify Accessible/Non-Accessible Features
The Department of Justice (“DOJ”) adopted in 2010 regulations that hotels must comply with in dealing with reservations made by disabled individuals. One of those requirements—and the one that is the basis of most of the ADA website-related lawsuits—is that a property’s website does not “identify and describe the accessible and non-accessible features [of the property] in enough detail to allow an individual with a disability to independently assess whether [the property] meets his/her disability needs.”
Because levels of accessibility will vary by the facility, the 2010 regulations do not specify a list of features or information that must be included about each accessible guest room or facility. However, DOJ’s Guidance to the 2010 regulations includes a discussion of features and information that, at a minimum, should always be included. They are as follows:
For each accessible room:
- the accessible room type (e.g., deluxe executive suite, deluxe king, etc.);
- the number and size of beds (e.g., two queen beds);
- communications features (e.g., visual alarms and visual notification devices); and
- the type of accessible bathing facility (e.g., bathtub with grab bars, transfer shower, or roll-in shower).
For the place of lodging:
- information about the facility’s accessible entrance(s) (e.g., location);
- information about the existence and location of a wheelchair accessible route connecting accessible parking spaces to the facility’s front entrance and to key areas of the facility such as the registration desk, the concierge desk, accessible guest rooms, the business center, restaurants, bars, exercise rooms, swimming pool and/or spa, and meeting rooms; and
- other information about “important features” of the facility that do not comply with the current scoping and technical standards for accessible facilities that were adopted in 1991. The examples provided in the DOJ’s Guidance are:
– doorways to and within accessible guest rooms that are too narrow; and
– non-accessible check-in counters (if this is the case, the facility should provide information about how or where guests with disabilities can check-in).
Additional “important features” could also include other amenities such as parking facilities, recreational facilities (spa, pool, sports courts, gym), the business center, food and beverage venues, and meeting rooms.
It is a good practice to inform guests with disabilities of whether any complimentary transportation provided by the facility is accessible, and whether there are any procedures that a guest should follow to request accessible transportation.
Each place of lodging should also ensure that it has employees (both onsite and at a reservations center, if applicable) who are available to provide additional information (such as the specific layout of an accessible room and bathroom, grab bar locations, and other amenities such as a bathtub bench) to individuals with disabilities.
Third-Party Reservation Services
In many cases, the people making claims against lodging properties simply go to third-party reservation services and view the hotel website there. Many lodging operators are not aware that the 2010 DOJ regulations regard hotel reservations for disabled individuals has provisions for reservations made via third-party reservation agents.
DOJ’s Guidance to the 2010 regulations states that third-party reservations services are not liable for non-compliance with these reservations rules, but owners and operators of places of lodging are responsible for ensuring that reservations made though these third-party services comply with the five requirements discussed above. With regard to the first requirement (that the process for booking an accessible room is the same as the process for booking a non-accessible room), the guidance states:
“… The rule, both as proposed and as adopted, requires covered public accommodations to ensure that reservations made on their behalf by third parties are made in a manner that results in parity between those who need accessible rooms and those who do not.
Hotels and other places of lodging that use third-party reservations services must make reasonable efforts to make accessible rooms available through at least some of these services and must provide these third-party services with information concerning the accessible features of the hotel and the accessible rooms. To the extent a hotel or other place of lodging makes available such rooms and information to a third-party reservation provider, but the third party fails to provide the information or rooms to people with disabilities in accordance with this section, the hotel or other place of lodging will not be responsible.”
Lodging operators should discuss with their third-party reservations services how they intend to comply with the foregoing requirements.
In addition, the guidance states that “some” accessible rooms must be made available to these services, and accessibility information about these rooms and the facility must be provided to the third-party reservations service. The Guidance also suggests that once an accessible room has been booked through a third-party reservations service, the hotel must make sure that the reservation is handled in a manner that complies with the five requirements in the regulations. Thus, lodging owners, operators, and the companies that handle their reservations should review not only how they handle reservations from third-party services, but also how those third-party services handle reservations for accessible guest rooms.
Members with questions on this important and urgent topic are free to contact CHLA’s Member Legal Advisor, Jim Abrams (email@example.com).