EVERYTHING SEEMED TO be in order at the Best Western Gold Canyon Inn in Gold Canyon, Arizona, after manager Andy Tanna completed a nearly $1 million upgrade to the property and its furnishings. The vendors on the job assured Tanna that their work and material all complied with the Americans with Disabilities Act of 1990.
“I thought my property was at a pretty good level because we just got the upgrade,” Tanna said.
But just to be sure, Tanna hired an agency to inspect his hotel in November for ADA compliance, and to his surprise, and dismay, the experts discovered a lengthy list of violations. For example, Tanna spent $6,000 on furniture for his breakfast room. “None of it was compliant,” he said. “People with disabilities need special tables.”
While Tanna works to bring his physical property into compliance, he also must contend with a virtual issue – his hotel’s presence on the internet. Under ADA rules, he must accurately list all accessibility features the hotel has available for disabled guests, including the breakfast tables.
“If you put it on the website knowing full well you are not compliant, then you really are liable in a lawsuit,” he said.
Tanna’s situation is not unusual, and it has led to a new legal challenge that parallels the “drive-by” lawsuits hotels have faced in recent years. It’s called a “click-by.” Prospective plaintiffs and their lawyers scan hotel websites in search of missing information or information that is not true.
In a drive-by lawsuit, a would-be plaintiff and his or her lawyer visit or call targeted hotels in search of ADA violations. The plaintiffs and lawyers also use Google Earth to scope out a hotel’s grounds in search of outdoor accommodations such as a pool lift and designated parking spots.
The click-by lawsuit, deploys the same hunting practice online by finding and exploiting vulnerabilities on hotel websites.
The aim in nearly all cases is to reach a cash settlement with the hotel owner in lieu of going to court. The practice has led to numerous cases filed by super-litigious groups of plaintiffs and law firms. Some states and the federal government are working to pass legislation to curb frequent filers.
Curbing the ‘click-by’
Click-by lawsuits focus on errors and omissions in meeting ADA reporting requirements on hotels’ websites. Like their real-world drive-by counterparts, the mission of the plaintiffs is to frighten hotel owners into profitable settlements, said Rajesh Patel, CEO and founder of INNSight, a California-based online hotel marketing company offering an educational course to help business attain online ADA compliance.
“There’s a spate of click-by lawsuits happening, especially in California where the law gives the plaintiff a lot of power; essentially, they can get away with fraud,” Patel said.
Hotel owners often are not aware of the requirements to be ADA compliant on their websites, Patel said. “As many hoteliers are, they’re busy with other things.”
The enforceable issue is the information posted on the website – the number of accessible rooms as well as ADA-compliant features such as the swimming pool, spa and dining areas.
A hotel owner would be wise to get on the property’s site and search and find an ADA-accessible room and then book that room online. “That’s where most people are getting tagged,” Patel said.
Also, once an ADA accessible room is booked, it needs to be removed immediately from availability.
Although hotels must provide all accessibility information about their properties on their consumer-facing websites, Patel said the mandate can be a stumbling block in some cases.
“A lot of hoteliers are leery of demonstrating what facilities they may or may not have” for fear of omitting something and attracting a lawsuit. However, it’s better to show more than less, he said.
‘A Different Ballgame’
Beside the ADA requirements, Patel said perhaps an even more difficult issue is compliance with The World Wide Web Consortium’s Web Content Accessibility Guidelines 2.0. “This is an entirely different ballgame,” he said.
WCAG is not law, Patel said, but the guidelines can still form the basis for a lawsuit. The W3C is constantly updating them.
“Anything that determines how the web works is defined by the W3C,” Patel said. The guidelines cover details such as font size and presentation of data in a manner easy to read by people with visual disabilities. But the guidelines are still subject to change, he said.
“The more complicated thing is WCAG 2.0,” Patel said. “It’s very nebulous and not defined.”
The ADA does not have clear rules about digital access and navigation. Thus, there is no law, per se, that a hotel is breaking if its website does not meet certain programming or design criteria. However, under the spirit of ADA and accessibility issues, some lawyers are frequently intimidating owners to pay up or face a more-costly drawn-out legal challenge.
There are several elements of ADA that contribute to the confusing atmosphere giving rise to click-by lawsuits, said Max Starkov, president and CEO of HEBS Digital software company, which designs hotel websites.
“To be clear, as of this moment, there is no binding law or technical standard in the United States defining website accessibility or requiring adherence to the WCAG 2.0,” Starkov wrote in a recent blog. “In fact, ADA does not even mention ‘internet’ or ‘website accessibility’ and does not provide any concrete website accessibility legal requirements.”
In the Meantime
While hotels and other businesses are required to be ADA compliant with physical access, complying with best practices in web design and programming is more of a forward-looking position, Patel said. Hotels that make their sites easy for disabled visitors to navigate, read and click on are limiting current and future legal challenges.
Staying ahead of the curve also deters unscrupulous visitors who use software to scan hotel websites in search of non-compliance, Patel said. The online-checking software used by such visitors may not be the most up to date, “so they can spit out false positives.”
Click-by lawyers rely on intimidation to achieve their goals, Patel said, and in some states the law favors them. In California, plaintiffs in ADA lawsuits can receive damages of $4,000 per offense, he said, citing information Los Angeles attorney Melissa Daughtery gave in a recent AAHOA seminar. Other states and jurisdictions allow for monetary damages ranging from $1,000 to $9,000, encouraging drive-by and click-by lawsuits.
“They instill fear in hoteliers and then the hotelier basically settles,” Patel said.
After all, even fighting a spurious lawsuit costs money, Patel said. “No matter what, you’re going to incur some attorney fees and you’re going to incur the headache.”
The best defense starts with keeping your physical property ADA compliant so you can provide full and accurate information on your website. Patel estimates that 30 percent to 50 percent of the businesses he helps with web compliance have ADA violations at their properties. He discovers non-compliant issues during on-site visits for photo shoots or other purposes.
“I’ll actually point out to them ‘Hey, you don’t have a peephole in the door at wheelchair level’ or ‘You don’t have a strobing fire alarm for people who are hard of hearing.’”
Elephant on the Menu
Hotel owners should avoid any company that offers to make their company “WCAG certified” as there is no such certification program, Patel said. He recommends hiring a certified accessibility specialist to do an assessment of a hotel’s website and property, just as Tanna did.
Nanette Odell, a doctor of adult education and founder of Life Quest Training & Consulting in Phoenix, Arizona, conducted Tanna’s inspection.
Achieving compliance can be both complex and simple, Odell said. Bringing a hotel up to code may seem overwhelming, but Odell advises owners to “just start working on it.”
“It’s like eating an elephant … one bite at a time,” she said.
The DOJ has little patience with business owners who fail to improve their property’s accessibility, Odell said, because they’ve had nearly three decades to do so.
Besides avoiding costly lawsuits and government fines, there are other strong economic reasons to invest in ADA compliance measures.
Hotels get a tax credit for the work they do to bring their property into compliance, Odell said.
There’s also the cost of losing the business of the disabled community, which is one of the fastest-growing group of travelers.
According to Starkov, approximately 48.9 million Americans have some form of disability, and the community spends more than $17.3 billion annually on travel. “And the economic impact is at least double that figure since many of them travel with at least one or two other adults,” Starkov said.
Every hotel owner should look at ADA on a personal level, Odell said. “Can my grandmother who is in a wheelchair stay here?” Odell said. “When you look at it from the human perspective, it becomes ‘This is what we have to do.’”
While things tend to quiet down after a lawsuit is settled, Odell said hotel owners should not put off meeting the terms of that settlement. “We hope that while things are quiet people are doing things to make their hotels more compliant,” Odell said. Sometimes the attorney who filed the suit will follow up a year later and sue again if the changes are not made.
To check online compliance, Odell suggests owners look at their hotel’s website. “If you have a picture of your beautiful pool and there isn’t a pool lift, remove that picture,” Odell said. “Otherwise, it’s just advertising ‘Come sue me.’” Once the problem is corrected put the new information and photo online.
Odell refers her clients to a technical expert to ensure their websites meet ADA requirements and WCAG guidelines. “If it’s set up right, it’s not that difficult to maintain,” she said. “But it has to be maintained.”
While hotel owners must comply with the law, Tanna said he thinks the law itself is too rigid and should be revisited. AAHOA has lobbied for such change and supports the ADA Education and Reform Act proposed by Rep. Ted Poe, R-Texas.
Poe’s legislation, H.B. 3765, aims to restructure the ADA to curb frivolous, illegitimate lawsuits. “These are individuals who are shaking down business, sometimes without even visiting the locations, by sending them phony demand letters alleging a violation of the ADA,” he said in a statement. “Often, the businesses are so confused or frightened of litigation that they will simply pay instead of risking going to court. In these instances, the motivation is not to fix any alleged violations; it is to intimidate businesses into settlement.”
Among other things, H.B. 3765 would require the DOJ’s Disability Rights to consult with property owners and disability rights advocates to educate state and local governments and property owners on effective and efficient strategies to provide accessible facilities in order to encourage compliance.
It also would prohibit attorneys from sending demand letters for alleged violations unless the letter includes specific information, such as the circumstances under which a guest was actually denied services. And, H.B. 3765 would give property owners 60 days after receiving written notice of an alleged violation to outline a remedy for the situation in writing.
“This legislation restores the purpose of the ADA: to provide access and accommodation to disabled Americans, not to fatten the wallets of attorneys,” Poe said.