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 wait—a patron has lodged a complaint to the hotel that they cannot use the website, and is discouraged he still has to make travel plans in person or over the phone. Further, he complains the website doesn’t offer information about the physical accessibility of the hotel.

The patron recommends you make the website handicapped accessible. However, you disregard the complaint as inconsequential, and do not make any changes. 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 of the American With Disabilities Act?
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 place of business. 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.

Courts Are Holding Hotel Owners Accountable for ADA Website Non-Compliance
A hotel owner may violate the ADA’s “access to services” by failing to provide blind patrons with assistive technology to enable them to use the website. For example, in 2004, then New York Attorney General’s Office (the “AGO”) filed suit against Ramada hotels and Priceline.com alleging that their websites violated Title III because they were inaccessible to blind users. Specifically, investigations conducted in 2003 and 2004 revealed portions of the Priceline.com and Ramada websites were incompatible with assistive technology used by blind web users. Ramada and Priceline.com settled the lawsuit and paid a total of $77,500 in damages and implemented modifications to their websites to ensure accessibility. As a result of their nonfeasance, Ramada and Priceline.com spent 10s of thousands of dollars more than they would have if they had addressed their websites’ deficiencies prior to the suit.

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. Indeed, in May 2007, plaintiffs in California filed a class-action lawsuit against Expedia.com and its subsidiary, Hotels.com, alleging that the websites’ treatment of disabled-access rooms as optional “amenities” violated state disability laws. The plaintiffs sued in a state court, but a similar claim could have been filed under federal court under Title III.

According to the complaint, the websites did not offer visitors search options that would identify accessibility features such as roll-in showers or Braille telephones. The plaintiffs alleged that even if these amenities were available in certain rooms, the websites made no guarantee of their availability at check-in, making it impossible for disabled patrons to reserve accessible rooms. On Jan. 26, 2009, the parties reached a settlement wherein Expedia.com and Hotels.com would add information concerning accessibility features for hotels to a searchable nationwide database. In addition, the participating hotels agreed to offer personalized assistance by trained customer service representatives to any party requesting accommodations for a disability.

In addition, the Department of Justice has begun to pursue noncompliant offenders with an aggressive zeal. On Jan. 13, 2009, five theater-district Manhattan hotel owners and operators, the Ameritania, the Amsterdam Court, the Carter, the Moderne and the Radio City Suites, became defendants to lawsuits alleging they each violated Title III. These hotels were the first hotels to be sued as result of a DOJ compliance review of forty-eight Theater District hotels. Each lawsuit sought civil fines as large as $55,000 and a court order requiring the hotels to make the alterations necessary to comply with federal law. Ultimately, each hotel settled for an undisclosed sum, acknowledging that they violated Title III and agreeing to make appropriate modifications.

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 expense as compared to cost of defending a Title III lawsuit. The benefits of proactive compliance to the hotel owner include protecting your business from Title III liability and providing opportunities for growth by offering access to disabled patrons. Hotels 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 to the law firm of Weiss Serota Helfman Pastoriza Cole & Boniske (www.wsh-law.com) and is a member of the Labor, Employment and ADA Practice Groups. Brooke Dolara is an associate with the firm and primarily consults with and advises clients on proactive compliance with federal and state access laws under the Americans with Disabilities Act.