HOUSTON — Most hotel owners and operators are aware of the responsibilities for their properties to comply with the Americans with Disabilities Act, but they also have to make sure their online presence is compliant as well.

Because hotels are considered a place of public accommodation, Title III of the ADA applies, said Jordan Schwartz, partner at Conn Maciel Carey, at the Hospitality Law Conference. That prohibits hotels from denying services and accommodations to people with disabilities, including implicit biases that create barriers to access. For physical structures, that means having stairs and no ramp or restrooms without accessibility features.

“What the ADA does is, it requires you to remove those barriers to access so someone with a disability cannot claim that they’re being discriminated against because they cannot use your facility,” he said.
 
For places of public accommodation, those ADA accessibility requirements also apply to their websites, Schwartz said. The two main areas under this are online accessibility features that allow people with disabilities to use a website and, specifically for hotels, including information on the website about a hotel’s physical accessibility features and amenities.

Making a website accessible means adding features that allow people with visual and hearing impairments to use it, Schwartz said. Almost every federal appeals court has moved in the direction of considering this to be a requirement under the ADA.

A person who is visually impaired will use screen reader software on their own computer that helps them use the website, such as reading the website’s contents to them, enlarging the text and/or increasing the color contrast, he said. Websites for public accommodations need to be designed to be compatible with the screen reader software.

One of the common issues with screen reader compatibility problems comes from restaurant websites, he said. Often, a restaurant will publish its menu online as a PDF file, but more likely than not the PDF file isn’t compatible on its own for the screen reader software.

Other problems include having pictures, symbols, maps or diagrams with no written descriptions, he said. Websites need text as an alternative to pictures. Image files, video and audio files need captioning.

Many companies get in trouble for not allowing users to navigate a website without a mouse, he said. Often a visually impaired person has difficulty seeing the mouse cursor on the screen and can’t see it when it moves over the button to click to make a reservation, so they’ll use their keyboard to navigate the website. That means a website can’t require the use of a mouse alone to complete a transaction.

Hoteliers should retain an accessibility consultant to review their website to determine whether it complies with the ADA, Schwartz said. Before they do that, though, they should obtain legal counsel who will handle the hiring of the consultant. That way, if someone sues the hotel company over a hotel website’s accessibility, the report from the consultant outlining any deficiencies is covered by the attorney work product doctrine and will be considered privileged and can’t be turned over to the plaintiff.

There are online accessibility widgets that some companies use to save money in their review of websites for ADA compliance, but those only catch about 20% to 30% of any problems, Schwartz said.

“You actually need human auditors to review the website,” he said.

Because people are aware the widgets don’t catch everything, savvy plaintiffs will sometimes target companies that post on their websites they used accessibility widgets, he said.

Hoteliers should add an accessibility statement in their hotel websites, Schwartz said. An attorney can help them draft it, but it can generally say that the company made its best efforts to review its website for ADA compliance and anyone with questions can contact the company.

“It is not 100% foolproof, but it is much, much better to have this than not to have this,” he said.

The U.S. Department of Justice, which enforces parts of the ADA, has supported this approach, and several courts have ruled in favor of companies simply for having the statement, he said. Potential plaintiffs are also less likely to sue a company that has posted such a statement.

Hoteliers are required to identify and describe the accessible features of their hotels on their websites, and those that don’t are subject to lawsuits, Schwartz said. A recent example is that of a disabled individual who sued a hotel company in Maine because its website didn’t contain enough information about its disability accommodations.

The plaintiff did not intend to stay at the hotel; rather, she’s acting as an “ADA tester,” he said. The purpose of her reviewing the website was to see what information is available on the website for a potential lawsuit over accessibility. The district court dismissed the suit for lack of standing. Because she did not intend to stay at the hotel, the court found she was not actually injured.

The First Circuit Court of Appeals, however, reversed that decision, stating the denial of accessibility information is in and of itself an actionable injury regardless of intention to stay. That puts it in conflict with other federal appeals courts’ rulings, and the U.S. Supreme Court said in late March it will hear the case.

The outcome of this case will have a large effect on companies considered to be places of public accommodations, he said. It will decide whether it’s easier or more difficult for serial ADA testers to file a compliance lawsuit.

To try to avoid such a lawsuit, Schwartz said hoteliers should hire an attorney familiar with ADA law to walk around the property and discuss the accessible features of the hotel. They would then compile those into a list to add to the website.

That would allow both disabled guests and those looking for potential lawsuits to see that the hotel has accessible parking, accessible restrooms, a pool lift and other features, he said.

“There’s no actual law on exactly what information you need to provide, but it’s kind of common sense,” he said. “You want to talk about the entrance, you’re talking about the restaurant, about parking. You want to say if there are accessible routes.”

Hoteliers also need to provide sufficient information about their accessible guestrooms, Schwartz said. That means detailing if they have roll-in showers or have bathtubs, include how many beds are in the room and other features.

While hotel owners and operators need to be mindful of the ADA rules for their websites, online travel agencies don’t, he said. Plaintiffs can still pursue lawsuits against hotels if the OTAs don’t provide that information about the hotels they list, even if the hotels’ websites have the necessary information.

“You need to work with your online travel agency and make sure that whatever information you have about your hotel, you provide it to them so they can provide the correct information to the public,” he said.

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