HOUSTON — As places of public accommodation, hotels in the U.S. and their websites need to meet certain accessibility requirements.
Speaking during the Hospitality Law Conference, attorney Jordan Schwartz explained those accommodations could be physical, such as adding a ramp or installing grab bars, or digital, such as written descriptions of pictures or captioning for videos. Accessibility also includes having online descriptions of the accessibility features at hotels.
Schwartz, who is partner at law firm Conn Maciel Carey, said Title III of the Americans with Disabilities Act applies to places of public accommodations, such as restaurants or hotels, and it prevents them from denying service and accommodations to someone with a disability.
“That’s not just saying, ‘No, you can’t come here.’ It’s more subtly prohibiting — discrimination by not having the correct processes, procedures and functions in place,” he said.
One common misconception Schwartz said he wanted to clear up is that just because a hotel was built before 1991, when the ADA became a law, it is not grandfathered in. Older properties still need to make the necessary accommodations.
“I just don't know where that got momentum from, but that's just not a thing,” he said.
Digital Accessibility
Every year, there are more and more website accessibility cases, Schwartz said. However, from 2010 to 2022, no one knew how the U.S. Department of Justice felt about online ADA accessibility, and they could only pull guidance from case law.
In 2022, the Justice Department said web accessibility is an ADA requirement for businesses open to the public, he said.
“Unfortunately, they kind of shrug their shoulders and said we don’t know what that means, so they didn’t really give anything specific to help,” he said.
Hoteliers can turn to the Web Content Accessibility Guidelines, or WCAG, for general guidance on how to implement accessibility features into their websites, he said.
Recently, U.S. Attorney General Merrick Garland signed a final rule order that ensures the accessibility of web content and mobile apps for people with disabilities, Schwartz said. The rule applies to Title II of the ADA, so it applies to state and local governments that make their own websites and phone apps. The rule covers many different features, such as providing captions on videos and enabling navigation through a keyboard instead of just a mouse.
While this rule does not apply to private businesses, companies should still be aware of it, he said. It’s likely that within years, this rule will be used as a model for a future rule that will mandate technical standards for private businesses to ensure accessibility of goods and services offered through their websites and apps.
“It's important to just be aware of this new law,” he said.
There are multiple accessibility features hotel websites need to feature, Schwartz said. For example, pictures, symbols, maps and diagrams on a website need a written description, often called alternative text. Video and audio files need captioning. Not only do websites need to be navigable by keyboard, not just a mouse, but the button to click to finally book the room must also work through the keyboard as well.
For anyone wondering if their hotel website, or their property, is accessible, there are ADA consultants available who can help with an assessment, he said. It would also be useful to include legal counsel as well. A consultant will produce a report to show what is accessible and where the property and website can be improved, but if the report is commissioned under the advice of counsel, it can be considered a privileged document in the event of a lawsuit.
Another way to reduce legal exposure is to have a two-paragraph accessibility statement on the website, he said. It can just say the website has been reviewed and is in compliance to the best of the company’s ability. Legal counsel should help write the statement, and it should only take a few hours' time.
“Not only is that a good thing to do from a business perspective and let someone know what to expect, a potential plaintiff may be a little bit less likely to bring a lawsuit if you have that,” he said.
Courts have even found it’s enough to have such a statement, particularly if there’s a means to contact the hotel with any questions, he said. In one case, the plaintiff lost because he did not contact the hotel through the means provided in the statement before filing suit.
A Moot Case
Earlier this year, the U.S. Supreme Court heard a court case that could have helped determine when a person has standing to sue over the lack of online descriptions of a hotel’s accessibility features, Schwartz said. In Acheson Hotels LLC v. Laufer, the plaintiff found a hotel with a website that didn’t provide a description of the physical accessibility features at the hotel and sued without ever intending to go to the hotel.
The district court ruled against the plaintiff over standing, but the U.S. First Circuit Court of Appeals reversed that decision, saying that if the website isn’t ADA compliant, the plaintiff has a case, he said. The U.S. Supreme Court then agreed to hear the case.
However, the plaintiff withdrew the lawsuit after some ethical complaints against her legal representation, he said. The Supreme Court still heard the case but decided it was moot since the plaintiff withdrew the lawsuit.
“So, now we still don't have guidance,” he said.
Even without a legal precedent over who has standing to sue, hoteliers can protect themselves by simply including a bullet point list on their website of what’s accessible on their property, Schwartz said. It should point out things such as accessible parking, accessible lobby restrooms and showers with grab bars.
Try not to provide inaccurate information that can make things worse for someone who relies on that information when choosing where to stay, he said.
Legal counsel can help review a property and compile a list of those features for the hotel website, he said.
Be aware that while a hotel’s website may have all this information, an online travel agency’s listing of the property might not, Schwartz said.
“Unfortunately for hotel owners and operators, that regulation that I mentioned at the beginning of this section only applies to places of lodging,” he said. “It does not apply to the OTA, so it is your responsibility as a place of lodging to provide accurate information to the OTA that they can provide about your property.”
If hoteliers can at least show they provided that information to an OTA, they’ll be in better shape during a lawsuit than shrugging their shoulders, he said.