Is Your Website a Liability?

By Lori Adelson, Of Counsel, Ruden McClosky | July 19, 2011

Congratulations. Your hotel has launched its new website and business is booming. The website has received rave reviews and business is beginning to grow. But there is a relatively large legal responsibility, which if missed, could involve your company in a costly legal battle somewhere down the road: failure to comply with Title III of the Americans with Disabilities Act.
 
Here’s the scenario: A blind patron has lodged a complaint with your hotel that they cannot use the website, and is discouraged that he still has to make hotel arrangements in person or over the phone. Further, he complains the website does not offer information about the physical accessibility of the hotel.
 
The patron recommends that you make the website handicapped accessible. However, you disregard the complaint. Unfortunately, the patron is undaunted and sues the hotel for discrimination under Title III of the Americans with Disabilities Act (“Title III”). The court agrees that the website is inaccessible, and orders your hotel to make changes to the website, and pay the patron’s attorneys’ fees and costs. In addition, the court orders your hotel pay compensatory damages for each day your hotel fails to make the requisite modifications; what started out as a single complaint has snowballed into an expensive legal nightmare.
 
What is Title III?
In 1990, Congress enacted Title III to prevent discrimination against disabled individuals by private entities operating public accommodations, such as hotels. Under Title III, all public facilities are required to provide both disabled and non-disabled customers with full and equal access to services. The courts have expanded “access to services” to include access to a company’s websites, reasoning that websites offer an extension of services provided by the company at its physical location.
 
As such, if a hotel operates a website that is inaccessible to customers it may be held liable under the ADA for disability discrimination, just as if the hotel prevented disabled patrons from entering its physical location. Although plaintiffs cannot recover monetary damages, they can sue and obtain both an injunction and attorneys’ fees against an offending business. In addition, the court order may award compensatory damage to accrue on a daily basis in the event the company fails to comply and make the requested modifications. Moreover, the court ordered modifications may be much more costly than the alterations the hotel may have had to make on its own initiative.

A hotel owner may violate the ADA’s “access to services” by failing to provide disabled patrons with assistive technology to enable them to use the website. Hotel websites may also run afoul of Title III if they do not impart the necessary information concerning the hotel’s accessibility to their users. In addition to private lawsuits, the Department of Justice has begun to pursue noncompliant offenders with an aggressive zeal.
 
Proactive website accessibility compliance
Although there is no exhaustive list of requirements for website accessibility under Title III, an accessible website should be accommodating to individuals with a range of disabilities, including visual, motor and cognitive disabilities. The website should work compatibly with assistive technology programs, which will allow disabled users to navigate the hotel’s website. An accessible website can easily accommodate disabled individuals suffering from joint, motor and/or visual impairments by offering compatibility with voice dictation software and voice recognition software. Websites can also accommodate visually impaired users by identifying all graphics appearing on the page by either magnification or an auditory translation of the graphic.
 
The cost of proactive compliance is relatively small in time and in expense as compared to the cost of defending a Title III lawsuit. The benefits of proactive compliance to the hotel owner include protecting the business from Title III liability and providing opportunities for growth by offering access to disabled patrons. Indeed, by achieving website accessibility for disabled customers, hotels can offer services to individuals who would otherwise seek out competing businesses that offer more accommodating services. Hotel owners should consult with their legal counsel and advisors to discuss a proactive compliance program that will best serve their needs.
 
Lori Adelson is Of Counsel at Florida-based Ruden McClosky, P.A. Adelson has extensive labor and employment litigation experience having represented both private and public sector entities on matters arising under federal, state and local employment and civil rights laws such as Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act and more.
 
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