When the Americans with Disabilities Act was signed into law in 1990, no one anticipated it would apply to websites and mobile applications. Today, it is becoming a growing liability concern for all hospitality businesses. Here’s the state of the law—and some tips for compliance.
You are likely familiar with Title III of the Americans with Disability Act (ADA). At every turn of your property, there are architectural features designed to remove barriers for disabled patrons. The ADA was signed into law in July 1990. The World Wide Web, as we know it, did not go “live” until a year later, and the first mobile applications were not launched until July 2008.
It is highly unlikely legislators anticipated the ADA would apply to websites or mobile applications. However, one of the most litigated areas regarding Title III of the ADA is whether it applies to a company advertising products and services on its website.
It is a hot topic in hospitality law, but one that is continually evolving. And that has created confusion for businesses looking for clear direction.
As noted, Congress did not anticipate the ADA applying in cyberspace, and as such, Title III does not include any guidelines regarding website accessibility. Moreover, the federal circuit courts are not in agreement whether or not Title III of the ADA applies to all websites that fall within the types of business classified as “places of public accommodation,” including lodging facilities.
The First (Maine; Massachusetts; New Hampshire; Puerto Rico; and Rhode Island), Third (Delaware; New Jersey; and Pennsylvania) and Seventh (Illinois; Indiana; and Wisconsin) Circuits have ruled that all websites must comply with the ADA. As such, in these states, operators need take immediate steps to comply.
The Sixth (Kentucky; Michigan; Ohio; and Tennessee), Ninth (Alaska; Arizona; California; and Hawaii), and Eleventh (Alabama; Florida; and Georgia) Circuits have ruled that websites do not have to comply unless there is a nexus between the website and a brick and mortar facility.
The remaining circuits have not ruled on this issue; therefore, hospitality businesses operating in those states are left guessing whether they need to comply. A number of district courts within those circuits, however, have ruled that all websites must comply, such as New York, one of the states in which the highest number of these cases are filed.
What to do?
According to Alisa Cleek, a hospitality industry attorney with the Atlanta law firm Taylor English Duma, LLP, if your property is located in a state comprising a circuit that has not yet ruled, you should take immediate steps to comply. A majority of courts are leaning toward all websites complying, or are applying a very lenient standard when determining whether the website has a nexus to the physical location, she said.
Cleek also notes the Department of Justice (DOJ), which is responsible for issuing ADA Standards, has also provided some guidance. The DOJ has shown support for something called the Web Content Accessibility Guidelines (WCAG), created by the World Wide Web Consortium. Operators are encouraged to ensure their websites and mobile applications are compliant with WCAG 2.0.
The bad news is the WCAG 2.0 is a complicated and highly technical set of guidelines that an average layperson will not understand how to implement, Cleek said. In short, however, the WCAG Guidance is broken down into four principles of compliance, including perceivable, operable, understandable and robust.
Under the perceivable principle, the website should provide text alternatives for non-text content, provide captions and other alternatives for multimedia, create content that can be presented in different ways (e.g., assistive technologies such as screen readers) without losing meaning, and make it easier for users to see and hear content.
Under the operable principle, the business must ensure that all functionality of the website is available from a keyboard, give users enough time to read and use content, refrain from using content that causes seizures, and help users navigate and find content.
Under the understandable principle, text on websites must be reasonable and understandable, content needs to appear and operate in predictable ways, and it should help users avoid and correct mistakes.
Finally, the robust principle requires that the website maximize compatibility with current and future user tools.
The details of implementation of WCAG 2.0 are likely something for your web developer to address. If you want to find out if your website is compliant with the WCAG 2.0 guidelines, visit the Web Accessibility Initiative’s website at www.w3.org/WAI/ER/tools/ for a list of vendors who provide online tools to assess your website’s compliance. (Many of these same vendors offer software products you can use to modify your website to be compliant.)
You and your attorneys also want to determine if there are state statutes that may also require compliance. For instance, in California, the Unruh Civil Rights Act (Unruh) requires websites to provide equal access to disabled patrons. In a recent case, a California State Court held that websites need to conform to WCAG 2.0.
The risks of noncompliance
The only damages under Title III of the ADA that are available to a private citizen who files a complaint for non-compliance is an injunction requiring the business to comply, and attorneys’ fees are also awarded. This is where ADA lawsuits can get expensive. The DOJ, however, has the ability to seek civil fines and penalties if it is involved in the enforcement efforts. Noncompliance might also invite negative social media.
Unruh provides for a minimum of $4,000 in statutory damages for each incident of discrimination. However, in the same case, Cleek said, the court recently limited the damages to $4,000 regardless of whether the consumer made numerous attempts to access the website, reasoning that the later attempts at access did not establish separate offenses for purposes of damages.
Please note: This article is for general information only. For legal guidance specific to your business and jurisdiction, you should consult a local attorney with expertise in this area.
Barry Shuster is assistant professor of the Legal Environment of Business and Hospitality Law & Ethics at North Carolina Central University School of Business. He is an AHLEI Certified Hospitality Educator and is admitted to practice before all North Carolina state and U.S. District Courts.
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