Low hanging fruit


Serial plaintiffs and their attorneys continue to find ADA lawsuits to be easy pickings

If a disabled person can’t find accessibility information on a hotel’s website but never planned to visit that property in the first place, has she really suffered discrimination? The Supreme Court is scheduled to rule on that issue during its next term, which begins in October, a case that’s being closely watched by hospitality groups across the country.

In March, the Supreme Court agreed to hear the case of Acheson Hotels v. Deborah Laufer, which involves a plaintiff who has brought approximately 600 lawsuits against hotels in a number of states. At issue is whether a self-appointed Americans with Disabilities Act (ADA) “tester” has Article III standing to sue when hotels fail to provide accessibility information online.

A ruling for the plaintiff would deal a substantial blow to hoteliers, who already have been plagued by disability lawsuits for years, according to David Raizman, a Los Angeles-based attorney specializing in ADA lawsuits. Raizman said many of his firm’s large hospitality clients have been hit by multiple ADA lawsuits over a number of issues, including the accessibility and content of their websites.

When plaintiffs win their cases, hotels must correct any accessibility issues brought to light. In addition, plaintiffs typically can seek monetary damages and attorneys’ fees, making ADA lawsuits potentially lucrative for both plaintiffs and their lawyers, Raizman said.

“This is a huge issue for the hotel industry,” he said. “A large number of cases are brought by a small group of people, but that group is growing now because it’s so profitable. You don’t even have to go to these hotels; you can just look them up online and hit 30 hotels in a day.”

Some ADA lawsuits, of course, are brought by plaintiffs who truly have been aggrieved, Raizman said. In some cases, disabled guests reserve handicap-accessible rooms but arrive to discover that none are available. In other cases, guests are unable to shower or use the restroom because the hotel hasn’t installed grab bars or roll-in showers as required by the ADA.

Complicating matters, disabled guests sometimes receive poor treatment from busy hotel workers when they complain or seek help, making their cases more compelling in court, Raizman said.

“You’re probably not going to stop the professional plaintiffs, but good customer service is always the best path toward avoiding litigation when it comes to people who’ve been aggrieved,” he said. “Juries and judges can be very sympathetic to claims that seem sincere and legitimate, and the emotional content associated with the claim is likely to make it more expensive and more difficult to resolve and win.”

Serial plaintiffs and their attorneys may go after large hotel chains, figuring that publicly traded companies can afford to settle a case quickly and move on, according to Todd Rosenbaum, a New York-based attorney representing hotels in ADA lawsuits. Others target independent hoteliers, who may not know the finer points of ADA compliance or lack the resources to defend themselves in court, he added.

“You’re probably not going to stop the professional plaintiffs, but good customer service is always the best path toward avoiding litigation when it comes to people who’ve been aggrieved,”

“I think it’s more of a burden on independent hotel owners and operators than it is on the larger conglomerates because their pockets just aren’t as deep,” Rosenbaum said. “Whereas a large hotel company may be able to settle multiple lawsuits, if an independent hotel is sued numerous times, damages could be significant, and that’s in addition to the cost of hiring a lawyer.”

Compared with other businesses, most hotels are “ahead of the curve” when it comes to ADA compliance since operators are well-versed in the specific requirements for hotels, Rosenbaum said. That awareness has led many serial plaintiffs and their lawyers to focus on hotels’ websites instead of on the properties themselves, he said.

ADA lawsuits targeting hotel websites generally focus on two issues: inaccessibility and failure to disclose accessibility information as required by the ADA, Rosenbaum said.

For example, hotel websites should be compatible with screen-reader software that reads the website’s contents aloud to visually impaired users. Sites also shouldn’t require the use of a mouse to make a reservation since many with visual impairments use their keyboard to navigate websites. Similarly, photos, videos, and other graphics should include captions.

“Those cases have been booming for many years,” said Minh Vu, who leads the ADA Title III defense team at Seyfarth Shaw, LLP. Last year alone, there were 3,255 lawsuits filed in federal court over website accessibility, and hotels accounted for many of those cases, she said. A sizeable portion was brought by visually impaired users who were unable to book a room online, she added.

Hoteliers should ensure their websites – and those of third parties such as online travel agencies – make accessibility information easy to find, Rosenbaum said. That information should detail safety features such as fire alarms and phones that light up to alert hearing-impaired guests. Other topics to cover include the physical dimensions of guest rooms and bathrooms, egresses and ingresses, the width of hallways and access to amenities.

Accessibility information should be displayed on all relevant sections of the hotel website. Additionally, there should be a separate link labeled “accessibility” that takes users to a section of the website devoted to this topic. That section should include contact information for someone in the front office who’s been trained to answer questions about accessibility, and the email address provided should be different from the one used for general inquiries, Rosenbaum said.

Hotels are attractive targets for ADA lawsuits for several reasons, including that guests simply stay there longer than at a restaurant or retail store, according to Stuart K. Tubis, a San Francisco-based attorney representing hotels in ADA lawsuits.

The ADA spells out myriad requirements for hotel guest rooms and restrooms, but properties also must ensure accessibility at their restaurants, convenience stores, pools, spas, gyms, and other facilities, he said.

“There’s just a lot going on at hotels,” Tubis said.

Common issues leading to ADA suits against hotels include inaccessible parking, front desks, restaurants, and guest-room bathrooms, Tubis said. Handicapped parking must be flat and properly marked by signage and painted stripes on the asphalt. People using wheelchairs must have a clear path from the parking lot to the entrance, including any necessary curb cuts.

The front desk should have a section that’s low enough for a person in a wheelchair to fill out forms and complete the check-in process, Tubis said.

Bathrooms inside guest rooms should be spacious enough so disabled guests can easily maneuver their wheelchairs. Restrooms also should be equipped with grab bars and shower seats, and the pipes below sinks should be wrapped or situated so people in wheelchairs who can’t feel their legs don’t sustain burns or scrapes, Tubis said.

Each type of seating in a hotel restaurant or bar should have space allocated for disabled guests, said Vu of Seyfarth Shaw. Wheelchairs must be able to fit underneath tabletops, and those tables must be low enough so people in wheelchairs can eat comfortably. Many hotel bars lack a lowered section for disabled guests, Vu said. In other cases, bartenders were never taught what those sections are designed for, so they use them to store bottles, glasses, and other commonly used items, she said.

“That’s probably the most surefire violation,” Vu said. “You can almost count on it.”

The increasing use of service dogs presents another complication for hoteliers, Vu said. Some people with service animals may have a disability that isn’t readily apparent, such as a mental-health issue. In some cases, dogs have been trained to detect when their owner is about to have a seizure, or even to remind their owners when to take their medication, Vu said.

Under the ADA, service dogs are allowed to accompany their owners wherever they go in a hotel other than the swimming pool, and they’re not required to wear a special vest or anything that differentiates them from a common pet, Vu said. Hotels are prohibited from charging pet fees for service animals or requiring guests to fill out additional forms, she added.

Hotel workers should be trained to ask only two questions of guests who have a dog but don’t appear to be disabled, Vu said. The first: Is that dog a pet, or is it needed because of a disability? The second: What type of work or task has that dog been trained to perform?

The delicate nature of these discussions underscores “the importance of training public-facing employees on key issues such as this,” Vu said.

“There does appear to be a need for more education among hotel operators about service animals, in my view,” Vu said. “There are all sorts of disabilities that are very hard to verify, and there are hotels that will ask for paperwork for a service animal or will try to charge pet fees. If the person is able to identify the work or task that the dog has been trained to perform, that’s pretty much the end of the discussion.”

To prevent lawsuits, Tubis said hoteliers should have ADA attorneys perform periodic audits of their properties to identify and correct accessibility issues. But, even when hit with ADA lawsuits, hoteliers shouldn’t feel pressured to settle immediately, he said.

“There are defenses against these claims, and we’ve successfully filed motions to have these cases knocked out of the courts,” Tubis said.

Strong Roots

strong rootsWhile by no means a comprehensive list, here are a few key areas hoteliers want to be certain they’re addressing to ensure they’re fully within ADA compliance.

  1. Verify your property’s website is compatible with screen-reader software.
  2. Ensure your property’s website can be navigated solely with a keyboard.
  3. Include captions for all photos, videos, and other graphics.
  4. Post accessibility information clearly on the property’s website.
  5. Enable abundant and easy-to-use handicapped-friendly access points for parking, as well as on-property navigation – including check-in.
  6. Design rooms to be easily navigable by guests in wheelchairs.
  7. Provide in-room safety features such as grab bars and seats in the showers.
  8. Supply ample seating in restaurants and bar areas for guests in wheelchairs.
  9. Train staff on what can and can’t be asked of a guest checking in with a service animal.

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