Question:  Does the ADA’s prohibition against discrimination based on physical or mental disability include a hotel’s website?  In other words, does the hotel’s website itself have to be accessible to and usable by people with disabilities?  Every CH&LA member should assume that the answer to this question is YES!

Among other things, this of course means that “get-rich-quick” lawyers are now focusing on suing hotels and other businesses with allegedly non-accessible websites and mobile applications.

Most recently, many California lodging establishments have been receiving letters from Pacific Trial Attorneys demanding damages, attorney fees, and injunctive relief (i.e., an order requiring the hotel to make its website ADA compliant.)  

Any lodging establishment that receives such a claim must take it seriously and react accordingly.

1.  Background

The Internet as it is known today did not exist when Congress enacted the ADA in 1990, and, therefore, neither the ADA nor the U.S. Department of Justice (DOJ) regulations specifically address the accessibility of websites and related activities.  Nonetheless, DOJ has stated that the ADA’s “broad and expansive nondiscrimination mandate reaches goods and services provided by covered entities on websites over the Internet.”  DOJ “has also repeatedly affirmed the application of Title III to websites [and mobile applications] of public accommodations.” 

DOJ announced a number of years ago that it intended to develop regulations explaining the nature and extent of exactly what Title III establishments would have to do to make their Internet activities accessible to and usable by people with disabilities. DOJ has not adopted any such regulations to date, but it announced that it intends to do so sometime in 2018.

2.   National Federation of the Blind and USA v. HRB Digital LLC and HRB Tax Group Inc.

Notwithstanding the fact that DOJ has yet to adopt any web-accessibility rules and standards, on March 3, 2014, the DOJ entered into a consent decree with HRB Digital LLC and HRB Tax Group Inc. that requires the company’s website, tax preparation tool and mobile applications to be more accessible.

The message is clear: The DOJ expects businesses to ensure that customer-facing digital technology and self-service equipment are accessible to individuals with disabilities, even though it has not yet issued regulations adopting specific technical standards for accessibility.

In the HRB consent decree, DOJ said that the minimum technical standards that businesses must use to insure accessibility is Web Content Accessibility Guidelines 2.0 Level A and AA Success Criteria (WCAG 2.0 AA). (Thus, businesses should feel comfortable moving forward with WCAG 2.0 AA as their accessibility standard.)
Among many other things, the consent decree requires H&R Block to:

• Ensure that www.hrblock.com and the Online Tax Preparation Product conform to, at minimum, WCAG 2.0 AA;
  
• Ensure that its mobile applications conform to, at minimum, the WCAG 2.0 AA. 
  
• If H&R Block uses or integrates third-party plug-ins or content, H&R Block shall provide a method of obtaining and using such content that conforms to WCAG 2.0 AA, except that at present, H&R Block uses a third-party plug-in to display the map location of its physical offices. This plug-in is not in conformance with WCAG 2.0 AA; and
  
• “[W]henever a substantial proposed change to www.hrblock.com, its mobile applications, or its Online Tax Preparation Product is made available to any group of H&R Block users or customers (e.g., Beta testing), such changes shall be tested by individuals with different disabilities, including at a minimum individuals who are blind, deaf, and/or have physical disabilities affecting manual dexterity (such as those limiting the ability to use a mouse), to identify any accessibility barriers not otherwise apparent through automated testing.”  (Emphasis added.)

In an article written by Minh Vu, an attorney with Seyfarth Shaw LLP, it was pointed out that websites are not the only functions that businesses need to address in terms of accessibility:

Accessibility of Point-Of-Sale Devices and Other Self-Service Equipment

Although POS devices, like ATMs, are different from other self-service machines in that the user must be able to use them independently for security and privacy reasons, businesses must consider how blind individuals will use the many types of self-service machines that have been deployed or are under development.

Self-service checkouts, touch screen beverage dispensers, check-in kiosks, gas station POS systems, vending machines and rental kiosks, for example, typically do not have accessibility features for the blind, such as audio guidance or Braille. Thus, businesses need to consider whether the machines will be placed in a location where assistance is readily available. Even if such assistance were available, the DOJ might push the enforcement envelope further and take the position that a customer who has to ask for assistance in using a machine — even if the assistance does not implicate any privacy or security concerns — has been denied equal access.

Note that the California Building Code already contains accessibility specifications for ATMs, fare machines, and point-of-sale devices.

3.      Reservations Policies and Procedures Required by the ADA
The entire issue of website accessibility is complicated by the fact that DOJ’s regulations set forth mandatory standards that hotels must meet to address the difficulty that individuals with disabilities have long had in making guaranteed reservations for appropriately accessible guest rooms. These reservation-related policies clearly involve a hotel’s website, mobile device systems, and possibly other IT functions that must be accessible.

4.      How the “Get-Rich-Quick” Lawyers Are Attacking Hotels and Other Businesses
It is very easy for a person to determine if a particular hotel’s website meets WACG 2.0 AA.  There are a number of Internet-based “automated accessibility testing tools” that can be run to “scan” a website to find accessibility flaws, such as http://wave.webaim.org/ that is mentioned in Ferrell’s demand letter (see endnote 1).  It is very easy for a plaintiff’s lawyer to hire an intern to pick URLs and have the testing tool do a diagnostic analysis.

If one of these tools detects some sort of accessibility flaw, lawyers like Scott Ferrell immediately send out a demand letter.  If the hotel does not respond, Ferrell files lawsuits.  Filing a lawsuit obviously runs up his fees, and this adds to the liability that the hotel faces.

Raj Patel, a principal at INNsight.com (https://www.innsight.com) who has helped a great deal with this article, points out that most, if not all, of the automated accessibility testing tools have their own flaws that will often cause them to identify a web-related accessibility problem that doesn’t actually exist.  More specifically, Mr. Patel notes that most testing tools are geared toward HTML 2 or 3, whereas modern websites, including those that are fully accessible, are based on HTML 5.  Hence, all of the “false positive” results that lead to frivolous claims.

5.      What CH&LA Members Should Know And Do

1. Take steps as soon as possible to determine to what extent, if any, your hotel’s website, mobile, and related functions comply with WCAG 2.0 AA.  Entities such as INNsight.com can perform this function for you.
   
2. If your website and mobile applications are not fully compliant, start working on your website and mobile applications.  As Ms. Vu noted in her article, referenced above:

There are good reasons for businesses to start working on their websites and mobile applications. The obvious benefit: More customers will have access. In addition, now that the DOJ has filed its own enforcement action, state attorneys general and private litigants will likely file more lawsuits, including class actions; the DOJ may pursue additional targets as well.

The danger in waiting for the lawsuits to happen before starting a compliance program is the additional exposure for damages under state laws, plaintiffs’ attorneys’ fees and civil penalties in the case of actions brought by the DOJ. In addition, plaintiffs will likely demand rigorous oversight of the remediation process, which will increase compliance costs. 

3. If you receive a demand letter from an attorney, take it seriously!  Many such letters have been sent, and a number of lawsuits have been filed in various federal courts against companies that either ignored the letters or refused to negotiate settlements.  Recently, several of these lawsuits were filed in California.
   
4. It is possible that your hotel might have one or more insurance policies that will provide you a defense against such a claim.  Be sure to discuss this with your insurance producer.  If you arguably have insurance coverage, be sure to file a claim with the insurer in a timely fashion – certainly before the end of your current policy year.
   
5. Be sure that all of the content you provide for your website is complete and accurate.  In other words, comply with item (ii) in endnote 3.
6. Be sure that your contract with your contract with your website designer spells out exactly what the "scope of work" will be, to include making sure the website and mobile functions, if applicable, comply with WCAG 2.0 AA. 

Also have a clause in the contract that requires the designer to indemnify you and hold you harmless in the event the website is not WCAG 2.0 AA compliant and a claim is made against you.  This is something that might have to be negotiated with the web designer.

If CH&LA members have any questions, please contact CH&LA’s Legal Advisor, Jim Abrams at Jim@calodging.com. 

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To Whom it May Concern:

This law firm has been retained by a blind Californian to prosecute a class action lawsuit against you for violations of the Americans With Disabilities Act and the Unruh Civil Rights Act. Our client was prevented from accessing your [hotel’s] website at because it iot fully accessible to visually-impaired individuals, which then prevented my client from being able to book a room and visit your  hotel.

As confirmed by the Website Accessibility Evaluation ("WAVE") protocol, contains numerous accessibility barriers that prevent visually impaired individuals from fair and equal enjoyment of the website.  Your failure to comply with version 2.0 of the Web Content Accessibility Guidelines subjects you to liability under both state and federal law….

My client is now entitled to a minimum of $4,000 statutory damages, attorneys' fees, and an injunction to ensure accessibility. We intend to file suit within two weeks.  If you believe that any of these assertions are inaccurate, or if you would like to discuss a confidential resolution of this matter, please have your counsel promptly contact me.

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  Title 24, California Code of Regulations, Part 2, Section 11B-707.

 Effective March 15, 2012, an owner, lessor, lessee, or operator (hereinafter referred to as “owner and operator”) of a place of lodging must, with respect to reservations “made by telephone, in-person, or through a third party”:

1. Modify its policies, practices, or procedures to ensure that individuals with disabilities can make reservations for accessible guest rooms during the same hours and in the same manner as individuals who do not need accessible rooms;
2. Identify and describe accessible features of the place of lodging and guest rooms offered through its reservations system in enough detail to reasonably permit individuals with disabilities to assess independently whether a given place of lodging or guest room meets his/her accessibility needs;
3. Ensure that accessible guest rooms are held for use by individuals with disabilities until all other guest rooms of that type have been rented and the accessible room requested is the only remaining room of that type;
4. Reserve, upon request, accessible guest rooms or specific types of guest rooms and ensure that the guest rooms requested are blocked and removed from all reservations systems; and
5. Guarantee that the specific accessible guest room reserved through its reservations system is held for the reserving guest, regardless of whether a specific room is held in response to reservations made by others.

Requirements (iii) through (v) above do not apply to reservations for individual guest rooms or units not owned or substantially controlled by the owner or operator of the place of lodging (e.g., condo hotels).

NOTE:  Although reservations made using websites are not specifically mentioned in the 2010 regulations, above, DOJ has stated informally that the omission of websites was inadvertent, and that it will issue a corrected regulation that expressly includes reservations made via website.