ADA litigation in the US: Hotels, beware

Hotels, hotel chains, resorts, inns and motels are prime targets of Americans With Disabilities Act litigation and common targets of Department of Justice disability discrimination enforcement activities. This is because hotels, in particular, provide a Pandora’s Box of potential violations including, but not limited to, violations at the check-in and concierge counters, guest rooms and bathrooms, parking lots, restaurants and pool/recreational facilities. With winter and vacations on the horizon, hotels and resorts would be wise to make their facilities accessible now before a lawsuit forces them to do so.

The ADA

The ADA prohibits public accommodations from discriminating against disabled individuals in any sense of the word – be it by possessing physical barriers to access, excluding, segregating or treating unequally disabled individuals. These accommodations may include effective communication with people with hearing, vision, or speech disabilities; denying the opportunity to participate in goods, services, facilities, privileges, advantages or accommodations or affording unequal opportunities to participate in any of the aforementioned.[1][2] Public accommodations may not give disabled individuals separate benefits, put them in unintegrated settings or deny them opportunities to participate in programs because of their disabilities.

Enforcement

Both Department of Justice enforcement of the ADA and the number of private lawsuits aimed at enforcing the ADA have skyrocketed. The increase in private lawsuits is no doubt due to a provision in the Act which provides for attorneys’ fees to the plaintiff’s attorney. Nationwide, more than 5,000 ADA accessibility lawsuits were filed in 2015 with the number of lawsuits increasing each year.  No public accommodation is immune.

The lawsuits are costly and time consuming. Even if the parties are able to reach an early settlement, defendants are routinely required to: 1) pay their own attorneys to defend the lawsuit; 2) pay the plaintiff’s attorneys in the settlement; 3) pay to perform modifications, which can be costly; and in some cases, 4) indemnify and/or defend their landlord or property owner. So what can a defendant do to comply with the law, minimize its risk of lawsuit and when a lawsuit is filed, defend itself in the most effective way possible?

A hotel or resort should be proactive; engage an attorney to arrange for a comprehensive review or compliance audit, advise on making the property accessible and protecting itself from a lawsuit.

Hotels and resorts: Top “weak spots”

With large spaces and many amenities, hotels, motels, inns and resorts are prime targets for private ADA litigation and DOJ enforcement activity. The ADA Standards require accessibility for individuals with a wide variety of different disabilities, such as persons who are blind or vision impaired, people who are deaf or hard of hearing, persons with limited use of hands or arms, individuals with mobility impairments, persons who use wheelchairs, and people who have combinations of disabilities.

Examples of accessibility target areas are:

Parking lots: A parking lot must have, for example, a certain number of accessible parking spaces, proper signage, curb cuts, ramps, sidewalks, crosswalks and accessible routes throughout.

Building entrance and lobby: Possible accessibility targets include the doorway and entryway, registration and check-in counters and any other service counters.

Accessible route throughout interior: That includes to/from any accessible guest rooms, restaurants, gift shops or stores and all other guest amenities.

Public restrooms: Restrooms must have the proper number of accessible stalls, as well as a dozen or so other items inside the stall or restroom, including the location of the toilet, presence and location of grab bars and the size and layout of the toilet stall or room.

Accessible guest rooms: A hotel must have a certain number of accessible guest rooms, including some with roll-in shower stalls and some outfitted for guests who are deaf or hard of hearing. There are dozens of other requirements for guest rooms including proper doorways and doors, door hardware, maneuvering space, room controls, closets and bathrooms (along with all of its elements).

Restaurants and/or food service area: Restaurants/food service areas must have accessible service counters, tables and seating, paths of travel.

Service animals: A hotel cannot exclude a service animal under a “no pets” policy.

There are many other areas of hotels and resorts which are susceptible to accessibility violations, including, but not limited to, marinas or boating areas, gym areas, golf facilities, play and water play areas, pools and spas.

Department of Justice: Hotel targets

The Department of Justice has also targeted hotels. In January of this year, the Department of Justice published a voluntary compliance agreement between the United States of America and Omni Hotels Management Corporation (the “Agreement”). The Agreement requires the Omni New Haven at Yale hotel (the “Hotel”) to undertake myriad modifications to the Hotel and its policies, including, but not limited to concerning: a) variation in type of accessible guest rooms; b) providing rooms accessible to persons with hearing impairments; c) alterations to the accessible guestrooms, including to the closets, clear floor space, bathrooms, showers and grab bars; d) providing unobstructed forward and side reach ranges to the brochure display; and e) performing many modifications to the lobby area restrooms.

In December 2015, the Department of Justice entered into a settlement agreement with Marriott International and Ritz-Carlton (Virgin Islands) to resolve an investigation and compliance review of the Ritz-Carlton St. Thomas. Although the modifications required under that agreement are not publicly available, one can assume that they are similar to those required of the Omni: physical modifications to guest rooms, provision of additional or variation in type of accessible guest rooms, modifications to restrooms and hotel service counters and, in the case of a resort, potentially modifications to its pool and resort amenities.

Hotels, motels, inns and resorts would be best served by addressing potential accessibility violations proactively. Most violations are easier to remedy on one’s own terms – without a private plaintiff or the Department of Justice requiring certain modifications. A good offense is the best defense.

[1] § 36.202