President Obama made clear in his 2010 State of the Union address that enforcement of civil rights laws is a top priority of his administration. The President backed up his commitment with a 2011 budget request of $162 million to fund civil rights enforcement activities by the Department of Justice. The requested budget represents an increase of $17 million from 2010, on top of a $22-million increase in 2009.

The increased resources devoted to civil rights matters have manifested in a flurry of regulatory and enforcement activities relating to the Title III of the Americans with Disabilities Act, one of the civil rights laws enforced by the DOJ. This statute imposes many obligations on lodging owners and operators pertaining to guests with disabilities. The list of obligations continues to grow, and the hospitality industry should take note in order to develop a cost-effective compliance and risk-management strategy.

Accessible websites. Deputy Assistant Attorney General Sam Bagenstos announced at a Congressional hearing on Apr. 22 that "the websites of private entities that are public accommodations are covered by the ADA" and they must be "fully accessible" to individuals with disabilities. The testimony went on to state that the DOJ is "considering issuing guidance on the range of issues that arise with regard to the Internet sites that are public accommodations covered by Title III of the ADA."

This recent statement represents the first clear statement of the DOJ's position that the websites of public accommodations such as lodging facilities must be accessible to people with disabilities. The DOJ is taking this position even though it has issued no regulations specifying the requirements for an ADA-compliant website. While Bagenstos' statement referenced the website accessibility requirements that apply to federal government websites (commonly referred to as the Section 508 Standards) and the guidelines developed by an independent group known as the World Wide Web Consortium (WC3), no federal law or regulation actually says these standards apply to public accommodations under Title III of the ADA.

People with no website development background will find the Section 508 and WC3 requirements very difficult to comprehend. The general concept is that persons who are blind or who have limited vision can use screen-reader software that will read aloud the content that is shown on their computer screens. Such screen-readers only work if the websites are constructed in a way that allows the software to meaningfully communicate the visual content on the screen to the user. Bagenstos' testimony suggests this process is "neither difficult nor especially costly," but some businesses that have tried to make their website accessible would probably disagree.

Another federal agency, the U.S. Access Board, is paving the way for the DOJ to issue website accessibility regulations for public accommodations by issuing proposed revised accessibility standards for federal government websites. The Access Board is the agency tasked with drafting standards for accessible public accommodations and commercial facilities, as well as federal agencies. These proposed Section 508 standards were issued on Mar. 22 and generally adopt the WC3's current standard (WCAG 2.0) as the standard for website accessibility, with some modifications. Once these standards are finalized, it will be very easy for the DOJ to issue a regulation applying them to the websites of all public accommodations, including lodging websites. Hotel owners and managers should stay ahead of this likely outcome by having their website developers review the proposed new standards for federal government websites and incorporating these standards in their next website redesign. It is far less expensive to make a website accessible at the initial construction stage then it is to retrofit an existing one.

Accessible self-service equipment standards. The Access Board also released on Mar. 22 new proposed standards for self-service machines for check-in/check out (e.g., self-service checkouts and point-of-sale devices), boarding passes, tickets, and food orders in restaurants and cafeterias. These standards will apply to all public accommodations that have any of these machines in their facilities once they are finalized by the Access Board and adopted as regulations by the DOJ. This process could take several years.

The proposed standards for these types of self-service machines are 33 pages long and highly technical. The Access Board has given the manufacturers of these machines only 90 days to study and comment on the impact of these rules on the machines and their cost. Whether these many requirements will increase the cost of these machines to lodging owners and operators requires further analysis, but one thing is certain: once the rule takes effect, lodging owners and operators will be in violation of Title III of the ADA if they don’t have compliant machines in their facilities. Manufacturers of these machines, on the other hand, cannot be sued under Title III of the ADA because they don’t own, operate, or lease public accommodations. Thus, hotel owners and operators who use these types of machines or have plans to use them in the future will have to exercise due diligence and use contractual language to minimize their exposure to lawsuits and the costs associated with them.

Proposed comprehensive revision to ADA Title III regulations. In 2008, the DOJ issued a proposed regulation that would have substantially changed many of the accessibility standards for public accommodations, added new standards for recreational facilities and expanded the rules regarding reservations policies and service animals. Some of these provisions were generally considered to be favorable to businesses, although the vast majority of them would impose enormous costs. At that time, the DOJ estimated the rule would cost businesses anywhere between $11 billion and $23 billion (net present value) over a 40-year period. The American Hotel & Lodging Association submitted comments expressing its view that this number grossly underestimated the actual cost to the lodging industry because of various faulty assumptions.

The rule was not finalized before President Obama took office, and it was returned to the DOJ for further revision in January 2009. At the end of April of this year, the DOJ sent the final rule to the Office of Management and Budget for its final review with a stated publication date of September.

The changes made by the DOJ to the rule since it was published as a proposed rule in June 2009 are not public. Some of the most problematic issues for the lodging industry in the proposed rule are how they are to be applied to existing facilities that comply (or substantially comply) with current law, particularly the new rules for accessible guestroom bathrooms. The proposed rule had a "safe harbor" for existing elements and spaces that comply with current law. Those elements and spaces would not have to be brought up to the new standards until they are altered. It is unclear whether the Obama Administration has retained this safe harbor. Even if it is retained in the final rule, the safe harbor will not address the enormous problems that will be caused by the new accessible bathroom rules. Under current law, an accessible sink can be placed next to a toilet so long as there is a 36-inch-wide space for the toilet. Under the proposed standards, a 60-inch-wide space must be provided for the toilet. The sink cannot be placed in that space. The proposed standards also require that accessible bathrooms have vanity counter space that is comparable to the vanity space provided in non-accessible bathrooms.

Under the proposed regulation, these two rules would apply whenever a currently compliant guestroom bathroom is renovated. These two rules would require a reconfiguration and enlargement of most existing accessible bathrooms, resulting in a loss of living space, or worse yet, a permanent reduction in room count. AH&LA made this issue a centerpiece of its public comments, but it remains unclear how this issue will be addressed in the final rule.

Enforcement activities. The DOJ's enforcement activities against lodging facilities seem to be on the upswing during the Obama Administration and its settlement demands have been more aggressive. In May 2009, the department entered into two consent decrees with the owners and operators of four Times Square area hotels in New York City that were constructed prior the ADA's enactment. These hotels collectively had a total of 502 rooms. The consent decrees require the creation of 27 wheelchair accessible rooms—10 more than are required by the ADA standards for a new hotel being constructed today. These four hotels collectively paid a $40,000 civil penalty and had to enter into court-ordered consent decrees to resolve these cases.

Hotel owners and operators that are the subject of guest complaints about disability-related issues should expect to be thoroughly investigated by the DOJ. They should not be surprised if those investigations may expand in scope far beyond the subject of the original complaint, and may expand to other hotels under common ownership or management that had nothing to do with the original complaint. Common subjects for compliance investigations have included the physical accessibility of facilities (including back-of-the-house areas), service animal policies, reservations policies and website accessibility.

To avoid an investigation, hotel operators and owners should take steps to avoid complaints in the first instance. Putting in place practices that ensure that guests receive the accessible rooms they reserved, having a written service animal policy, and purchasing communications kits for the hearing impaired, and ADA-compliant portable tub seats that can be secured to the tub will substantially reduce the likelihood of guest complaints. Proactive management and resolution of disability-related complaints should also be a top priority. For those companies with multiple properties nationwide, a good strategy in this enforcement environment is to agree to resolve local matters as quickly as possible before they become a nationwide problem, even if that might mean agreeing to some unreasonable demands.

The DOJ has also been more active in ADA Title III lawsuits brought by private plaintiffs against public accommodations. One example is a class action brought against Walt Disney World by plaintiffs who claimed that Disney's refusal to allow them to use their Segways in the parks was a violation of the ADA. After the parties had reached an agreement to resolve the lawsuit, the DOJ intervened to object to the settlement as being unfair to people with disabilities. The lawsuit is still pending as a result.

The lodging industry is facing many challenges at the present time. Compliance with Title III of the ADA is yet another challenge, but it can be effectively managed with good planning and procedures.

Minh Vu is a partner at Seyfarth Shaw LLP and a former counselor to the Assistant Attorney General for Civil Rights at the Department of Justice. She has represented numerous hotel owners and operators in ADA Title III lawsuits as well as Department of Justice enforcement actions. Ms. Vu may be reached at mvu@seyfarth.com.