MIAMI, FL – December 8, 2017 – A new kind of Americans with Disabilities Act (“ADA”) lawsuit, one that combines notions of both website and physical access, has been filed in the Southern District by a well-known ADA Plaintiff, Patricia Kennedy, and this lawsuit targets hotels and other places of lodging specifically.
In the past, people with physical disabilities would come to hotels and file lawsuits under Title III of the ADA based on alleged deficiencies or barriers with physical attributes of the properties- bathrooms, ramps, parking lots, etc. More recently, businesses, including hotels, have been targeted for website accessibility by individuals with vision and hearing impairments. Essentially, these individuals began filing lawsuits alleging that the websites were not properly coded to support the use of their assistive device thereby denying them access to the same online user experience as a non-disabled user.
This new variation is a mix of both. Now, people with physical disabilities, who are not vision or hearing impaired, are filing ADA website cases citing a violation of 28 CFR 36.302 - Modifications in policies, practices, or procedures. In relevant part, 28 C.F.R. Section 36.302(e)(1) imposes the following requirement:
(1) Reservations made by places of lodging. A public accommodation that owns, leases (or leases to), or operates a place of lodging shall, with respect to reservations made by any means, including by telephone, in-person, or through a third party-
(ii) Identify and describe accessible features in the hotels and guest rooms offered through its reservations service in enough detail to reasonably permit individuals with disabilities to assess independently whether a given hotel or guest room meets his or her accessibility needs;
While most online hotel reservation systems include the handicap symbol to indicate that a room is accessible, they do not usually identify and describe accessible features in the hotels and guest rooms offered through its reservations service in enough detail to reasonably permit individuals with disabilities to assess independently whether a given hotel or guest room meets his or her accessibility needs. There is typically no description at all for the room, let alone the hotel features.
In one of the first lawsuits of its kind against Extended Stay America, Inc., Ms. Kennedy alleges that she attempted to use the hotel’s online reservation system to review the accessibility features of the property but was unable to do so because the website failed to comply with 28 C.F.R. Section 36.302(e). It should be noted that there does not appear to be an exception to the requirements of 28 C.F.R. Section 36.302(e)(1)(ii) for reservations for individual guest rooms or other units not owned or substantially controlled by the entity that owns, leases, or operates the overall facility, leaving vacation rentals listed on third party sites like Vacation Rentals By Owner and the like potentially vulnerable to similar claims to the extent that the overall property is considered a public accommodation.
The good news is that the cure is likely easy and inexpensive to implement, so hotels and other places of lodging can get out ahead of these claims, saving them a lot of money in attorneys’ fees and settlement costs. Unfortunately, it appears that this may be the new wave of ADA lawsuits that hotels and other places of lodging will face.