We’d like to make our clients and other hotel owners aware of a new wave of Americans with Disabilities Act (the “ADA”) lawsuits that are being filed in the state of Georgia, more particularly in the city of Atlanta and its suburbs. These ADA lawsuits are different than the so-called “drive-by” lawsuits that have become popular in the last few years. Those types of ADA lawsuits target the condition of the real estate property of businesses that may fail to live up to the standards of the Americans with Disabilities Act.
This new slew of ADA lawsuits is focused on hotels and hotel listings on third-party websites, such as expedia.com, hotels.com, etc. The plaintiff in these lawsuits claims that she went to these third-party websites in order to view the accessible amenities and accessible rooms available at the defendant’s hotel. The suit alleges that the third-party website reservation systems fail to provide information about the accessible amenities of the hotel, including its rooms, to persons with disabilities. The plaintiff claims that she was unable to determine whether the property contained accessible amenities, whether the hotel had accessible rooms available to book, and/or the listing did not allow for the booking of accessible rooms. These allegations, if true, are a violation of the ADA and carry monetary penalties in the form of the award of attorney’s fees to the plaintiff.
These ADA website lawsuits stem from a firm out of Florida which has pretty much blanketed that state with ADA website lawsuits. That firm has not hired local counsel and decided to target hotel owners here in Georgia. The firm has now filed over 50 lawsuits against hotel owners.
Compliance Requirements Under 28 C.F.R. Section 36.302(e)(1)
It’s very important for hotel owners to review these various third-party websites that their hotels appear on and to make sure that they are in compliance with the ADA. Specifically, these lawsuits claim that the defendant violated 28 C.F.R. Section 36.302(e)(1), which states that a public accommodation that owns, leases (or leases to), or operates a place of lodging shall, with respect to reservations made by any means, including by telephone, in-person, or through a third party:
- (i) Ensure that individuals with disabilities can make reservations for accessible guest rooms in the same manner as individuals who do not need accessible rooms;
- (ii) Identify and describe accessible features in the hotels and guest rooms offered through its reservations service in enough detail to reasonably permit individuals with disabilities to assess independently whether a given hotel or guest room meets his or her accessibility needs;
- (iii) Ensure that accessible guest rooms are held for use by individuals with disabilities until all other guest rooms of that type have been rented and the accessible room requested is the only remaining room of that type;
- (iv) Reserve, upon request, accessible guest rooms or specific types of guest rooms and ensure that the guest rooms requested are blocked and removed from all reservations systems; and
- (v) Guarantee that the specific accessible guest room reserved through its reservations service is held for the reserving customer, regardless of whether a specific room is held in response to reservations made by others.
The lawsuits focus on violations of subsections (i–iii) above. A few ways to make sure your hotel listing is not in violation of the ADA is to ensure that each third-party website that lists your hotel actually displays the accessible rooms available to rent, so that a person with a disability can actually book these rooms through third-party websites. The listing should also display the accessible features or amenities of the accessible rooms and the property, so that a person with a disability can determine if the property has accessible features that meet his or her needs.
Action Steps for Hotel Owners
The hotel owner must log in to their account on each third-party website and view the settings of every site that lists their hotel as available for booking. The hotel owner should review the list of possible features and amenities that the third party allows the hotel owner to check off and ensure that each and every one of the hotel’s accessible features is listed. This includes whether there are roll-in showers, braille signage, a lift for the swimming pool, elevators, escalators, etc.
The hotel owner must review the settings of each account to ensure that the third-party website will allow their listing to display the number of ADA-compliant rooms that their hotel has and allow a visitor to book such a room through the site. Certain franchisors and/or third-party websites do not allow hotels to list accessible rooms unless the hotel contains a minimum of 3 accessible rooms. It has come to our attention that some franchisors have lifted this restriction, while others have kept them in place.
Our suggestion is to remove your listing from a third-party site if it does not allow someone to book an accessible room. While removing listings from third-party sites may reduce traffic and bookings, failing to accurately display available accessible rooms or features leaves you vulnerable to ADA lawsuits under 28 C.F.R. Section 36.302(e)(1). Third-party sites commonly involved in these lawsuits include expedia.com, booking.com, hotels.com, orbitz.com, priceline.com, and agoda.com.
We have discussed these ADA website lawsuits with franchisors, franchisees, and the Asian American Hotel Owners Association (AAHOA). While franchisors have taken steps to make sure their own websites are compliant with the ADA, not many have addressed third-party websites, and they are generally unwilling to indemnify or protect franchisees regarding third-party listings. Court filings indicate that the plaintiff's firm shows no signs of slowing down.
What to Do If You Are Served
If you have been served with an ADA lawsuit, it is imperative to retain counsel to review the lawsuit and attempt to settle the matter as quickly and favorably as possible. The ADA allows the award of attorney’s fees if a defendant is found in violation, and due to the broad drafting of the regulation, almost every defendant that is sued is in violation of at least one provision.
The longer you wait to address the lawsuit, the more the plaintiff’s attorney’s fees will accrue. Courts have awarded attorney’s fees between $10,000.00 to $20,000.00 in cases where a default judgment was entered because the hotel owner ignored the lawsuit. We have negotiated favorable settlements for our clients in defending these ADA lawsuits. Contact us today or call us at 770-881-8081 if you have been served with an ADA lawsuit.