Congratulations. Your hotel has launched its new website and business is booming. The website has received rave reviews and business is beginning to grow. But wait—a blind patron has lodged a complaint to the hotel that they cannot use the website, and is discouraged that he still has to make hotel arrangements in person or over the phone. Further, he complains the website does not offer information about the physical accessibility of the hotel.
The patron recommends you make the website handicapped accessible. However, you disregard the complaint as inconsequential, and do not make any changes. Unfortunately, the patron is undaunted and sues the hotel for discrimination under Title III of the Americans with Disabilities Act (“Title III”). The court agrees that the website is inaccessible, and orders your hotel to make changes to the website, and pay the patron’s attorneys’ fees and costs. In addition, the court orders your hotel pay compensatory damages for each day your hotel fails to make the requisite modifications. What started out as a single complaint has snowballed into an expensive legal nightmare.
What is Title III of the Americans with Disabilities Act?
In 1990, Congress enacted Title III to prevent discrimination against disabled individuals by private entities operating public accommodations, such as hotels. Under Title III, all public facilities are required to provide both disabled and non-disabled customers with full and equal access to services. The courts have expanded “access to services” to include access to a company’s websites, reasoning that websites offer an extension of services provided by the company at its physical location.
As such, if a hotel operates a website that is inaccessible to customers it may be held liable under the ADA for disability discrimination, just as if the hotel prevented disabled patrons from entering its physical place of business. Although plaintiffs cannot recover monetary damages, they can sue and obtain both an injunction and attorneys’ fees against an offending business. In addition, the court order may award compensatory damage to accrue on a daily basis in the event the company fails to comply and make the requested modifications. Moreover, the court ordered modifications may be much more costly than the alterations the hotel may have had to make on its own initiative.
Courts Are Holding Hotel Owners Accountable for ADA Website Non-Compliance
A hotel owner may violate the ADA’s “access to services” by failing to provide disabled patrons with assistive technology to enable them to use the website. Hotel websites may also run afoul of Title III if they do not impart the necessary information concerning the hotel’s accessibility to their users. In addition to private lawsuits, the Department of Justice has begun to pursue noncompliant offenders with an aggressive zeal.
Proactive Website Accessibility Compliance
Although there is no exhaustive list of requirements for website accessibility under Title III, an accessible website should be accommodating to individuals with a range of disabilities, including visual, motor and cognitive disabilities. The website should work compatibly with assistive technology programs, which will allow disabled users to navigate the hotel’s website. An accessible website can easily accommodate disabled individuals suffering from joint, motor and/or visual impairments by offering compatibility with voice dictation software and voice recognition software. Websites can also accommodate visually impaired users by identifying all graphics appearing on the page by either magnification or an auditory translation of the graphic.
The cost of proactive compliance is relatively small in time and expense as compared to cost of defending a Title III lawsuit. The benefits of proactive compliance to the hotel owner include protecting the business from Title III liability and providing opportunities for growth by offering access to disabled patrons. Indeed, by achieving website accessibility for disabled customers, hotels can offer services to individuals who would otherwise seek out competing businesses who offer more accommodating services and invites the greatest amount of user traffic and potential revenue opportunities. Hotel owners should consult with their legal counsel and advisors to discuss a proactive compliance program that will best serve their needs.
Lori Adelson is of counsel at Florida-based Ruden McClosky, P.A.