[Tn-talk] FW: ADA Litigation over Website Accessibility is Poised to Explode

[Sheri Anderson]

Dear Federationists,

Below is some information of interest to our organized movement.

Warmly,
Sheri Anderson

http://www.hotelnewsresource.com/article63740ADA_Litigation_over_Website_Accessibility_is_Poised_to_Explode.html

ADA Litigation over Website Accessibility is Poised to Explode
2012-05-31


Your next DOJ investigation or ADA class action could be just a mouse
click away!

How many lawsuits or claims have been filed by private plaintiffs and
the Department of Justice (DOJ) against property owners under the
Americans with Disabilities Act or ADA?

The latest figures show that more than 15,500 such ADA lawsuits or
claims have been filed. And the pace is about to pick up in a big way.

My partner Marty Orlick, who heads JMBM's ADA compliance and defense
team, has defended more than 500 ADA claims all over the country.
Marty warns that we may be about to see a tidal wave of Cyber
Accessibility claims -- lawsuits about reservation systems, hotel
websites and related communications facilities.

Why could there be a big slug of these ADA lawsuits over websites?
Marty says that there are several reasons:

  1.  First, these lawsuits will be very easy for plaintiffs to work
up. The plaintiffs do not need any site inspection, experts or
research. They can just surf the web from the convenience of their
homes or offices. Marty says the "surf by" complaints could dwarf the
"drive by" ADA lawsuits that looked for missing accessible parking
spaces and other readily visible shortcomings.
  2.  Second, some owners and operators have not been paying enough
attention to this issue. They have had their attention elsewhere, such
as on operating fundamentals, labor costs and ADA pool lift
requirements.
  3.  Both the DOJ and private plaintiffs have had tremendous success
with website accessibility lawsuits under the ADA (see the discussion
below and related articles about the Hilton International consent
decree and the Charles Schwab class action case), and they are growing
impatient for compliance.
  4.  In addition, a lack of clear industry standards and misinformed
marketing staff have lulled some into thinking they are already in
compliance when that is not so.
  5.  Finally, some owners and operators have not recognized ADA
compliance for the high priority it demands. They have not appreciated
how costly ADA litigation and defense can be, and how compliance is so
much cheaper than defense.
So here are some timely tips from Marty Orlick, a pro who really
understands the ADA compliance and defense. . .
Cyber Accessibility -- What every hotel owner and operator needs to
know about the ADA, websites and the internet -
by

Martin H. Orlick, Esq. | ADA Defense and Compliance Lawyer

When the ADA was adopted in 1990, the internet was in its infancy and
no one gave any consideration to what we have coined "Cyber
Accessibility" -- not
the U.S. Access Board, the DOJ, nor advocates for the blind. But now,
with the explosion of the internet and some high profile developments
we will discuss, the DOJ and advocacy groups are increasing their
efforts to compel businesses to assure that their websites are
accessible to the visually-disabled. "Drive-by" lawsuits are becoming
so passé. Today, a DOJ investigation or lawsuit is just a mouse click
away.

In our May 4, 2012 article, we alerted our readers that Charles
Schwab, the nation's leading securities broker-dealer, reached a
settlement with a disability rights organization in which Schwab
agreed to implement the Web Content Accessibility Guidelines (WCAG)
(discussed below) to assure that its website is navigable by blind and
low vision clients. See, ADA compliance and defense lawyer alert:
Charles Schwab settles claim over website
accessibility<http://hotellaw.jmbm.com/2012/05/ada_compliance_-_charles_schwab_settlement.html>

The Schwab settlement has far reaching implications for the
hospitality industry and all other places of public accommodation. The
advocacy group which threatened to sue Schwab, is led by the same
attorney who, in 2000, "persuaded" the nation's leading banks to
install "talking ATMs." Today, nearly every ATM in the country
provides voice activated communications elements to assist blind and
low vision bank customers to navigate the machines. Websites are the
next frontier of ADA litigation.

THE TWO BASIC WEBSITE ISSUES FOR HOTELS.

There are basically two aspects of website access applicable to
hotels; website content, and navigability by blind, low vision and
cognitively disabled persons.

WEBSITE CONTENT

For guidance on the content of hotel websites we need look no further
that the DOJ's recent consent decree with Hilton Worldwide, Inc.
Hilton agreed to make its Reservation Systems, whether telephonic or
internet-based, accessible so that that individuals with mobility and
hearing disabilities can make reservations for accessible rooms, with
the opportunity to guarantee the reservation. Each Hilton Brand is
required to accurately update its guestroom inventory and availability
in the Reservations System. The information not only must identify the
types of rooms which are accessible, but for each room type, must also
identify its accessibility features, such as the number of beds, size
of bed(s), roll-in shower or tub, visual alarms, executive level
rooms, suites and views.

See Hilton's ADA Settlement with the Department of Justice:
Precedent-setting agreement delivers more than removing architectural
barriers<http://hotellaw.jmbm.com/2011/01/hilton_ada_settlement.html>.

NAVIGATION OF WEBSITES BY VISUALLY-IMPAIRED INDIVIDUALS.

The second issue is whether your website is useable by blind, low
vision and cognatively disabled persons. It is estimated that of the
nearly 10 million visually impaired people in the United States, 1.5
million use assistive technologies such as screen reader computer
technology to access websites and communicate via the internet. Screen
reader technology converts website text to an audio format by reading
the display screens and by guiding the vision-impaired user through
the website prompts.

Accessible websites provide computer codes that are compatible with
screen reader software. There are more than 50 distinct screen reader
software programs commonly used depending on the nature of the user's
disability and their operating platforms. Selecting a program that
will be best for your website requires expert consideration. Because
of the sensitive nature of this technology, what may appear to be an
unimportant or irrelevant feature to a website developer may make the
difference in a disabled person being able to navigate your website.

In the Schwab case, the client, coincidentally a computer software
developer, day traded on Schwab's website for years. For some
undisclosed reason, perhaps due to changes within the website or
perhaps within the client's computer system, she could no longer
navigate the website and execute trades. Changes to accommodate one
type of screen reader may inadvertently disable access and use by
another.

The current internet environment is changing almost daily--internet
sites for personal banking and third party reservation systems are now
commonly accessed through mobile devices such as SmartPhones and
Tablets, using a variety of browsers on an ever increasing variety of
operating platforms. Cloud Computing and SaaS have created unique
needs for many individuals, who in turn may utilize screen reader
technology designed to accommodate their individual production
environment, making a "one-size fits all" software of hardware
solution very difficult to achieve.

The more likely scenario for lack of website access which prevents
potential guests from accessing your website to learn about your
hotel's offerings or to book a reservation online, is that your
website was never designed to be accessible by persons who are blind
or have low vision in the first instance.

Since the internet is a primary point of access to goods and services
for many individuals, including the vision-impaired, it is hardly
surprising that online accessibility has become a major focus for DOJ
enforcement proceedings and private advocacy group lawsuits. Such
enforcement actions and litigation can expose your business to
multi-million dollar penalties, damages and substantial legal and
expert fees to defend. Unfortunately, the lack of certainty in online
accessibility standards has made it difficult for businesses to
confidently select their technologies and rely on the advice of their
third-party reservation vendors. Trusting standard website
development, without involving internet accessibility specialists,
will often fail to produce an accessible website.

THE WORLD WIDE WEB CONSORTIUM (W3C)

Although the Web Accessibility Initiative and other groups have been
advocating for standardization for some time, no written guidelines
for website accessibility have been adopted by the private sector. All
that exists are conceptual aspirations which provide little certainty,
especially in the presence of ever-changing technologies. Because it
is far simpler for the U.S. Access Board and the DOJ to develop
scoping and technical standards for the "built environment," such as
parking or guestroom technical standards, than it is to develop
technical standards for the ever-changing intricacies of the internet,
there are currently no standard templates for website developers to
follow.

The W3C publishes the WCAG, which is a broad set of web access
guidelines. The WCAG is the most highly developed set of guidelines
for website accessibility and is being used by the federal government
and many in the private sector; however, these guidelines have not
been formally adopted by the DOJ. Although the DOJ has indicated that
it views the WCAG guidelines as the most comprehensive, it has not
adopted them for all public accommodations.

Given the high stakes involved, and because of the 2010 ADA Standards'
requirements which became mandatory March 15, 2012, it is now more
important than ever for hotels to evaluate their online interface for
accessibility and implement a template and protocol to develop
accessible websites. Thereafter, it is equally important to regularly
evaluate and update your accessibility technology. The requirement for
effective communication is equally applicable to other means of
communication with customers and potential customers, such as
Telecommunication Relay Services (TRS) and effective auxiliary aids
and services.

THE APPLICABLE LEGAL REGULATIONS

The ADA guarantees equal access for individuals with disabilities in
public accommodations, like hotels, restaurants, golf courses and
sports facilities. It is very important to understand that the ADA is
civil rights legislation, not a national building code enforcement
act.

Violations of the ADA can be enforced by the DOJ's Civil Rights
Division. We have been following DOJ settlements for years. In 2011,
we observed the largest DOJ monetary settlements by far. The
significant exposure for failing to provide effective communicative
services that are accessible to the disabled, is dramatically
illustrated by recent enforcement settlements against Hilton
Worldwide, Inc., Wells Fargo Bank and Bank of America. The ADA also
created a private right of action for disabled individuals and
advocacy groups to obtain injunctive relief (barrier removal) and
attorneys fees and costs. Some states, such as California also permit
a private plaintiff to recover damages.

The DOJ's policy and recent court decisions on website accessibility
state that the ADA applies to public accommodations whenever they
correspond or transact business via the internet. As a result, the
"effective communication" rule applies to those businesses that use
the internet as a means of communication for the sale of their goods
and services to the public. These businesses must be prepared to
present their goods and services thorough an accessible medium. It is
critically important for hotels and other businesses to evaluate and
implement written policies, practices and procedures for the content
and navigable features of their websites.

SOME NOTEWORTHY EXAMPLES

The landscape of disabled access litigation related to online services
has significantly changed and expanded over the past decade.
Initially, the internet was an area of little concern as courts
uniformly held that the ADA applied to "brick and mortar" facilities,
not to cyberspace. This has changed and online accessibility is
presently, and will continue to be, an area of significant
investigation and litigation.

Some noteworthy examples include:

  *   In 1999 the National Federation of the Blind sued America Online
because its website was inaccessible to the blind. A settlement was
reached and AOL changed its website to accommodate screen reader
software technology.
  *   In 2003, the New York Attorney General, investigated
Priceline.com and Ramada.com contending that their respective websites
were inaccessible to the blind and low vision customers. They too
installed screen reader software.
  *   In October, 2007, the U.S. District Court for the Northern
District of California certified a national class in National
Federation of the Blind vs. Target Corp., holding for the first time
that online retailers must provide website access to disabled persons.
Target settled the case, paid $6 Million and agreed to install screen
reader software so that online customers and potential customers who
are visually impaired have access to Target's website.
  *   In 2010, Hilton Worldwide, Inc. entered into a comprehensive ADA
settlement decree with the DOJ in which it agreed to enhance
accessibility to its telephonic and internet-based Reservation
Systems. In addition to paying a monetary penalty, Hilton agreed to
modify and maintain all of its websites to comply with the WCAG
version 2.0, Level A success criteria.
CONCLUSION

As with most businesses today, hotels communicate with their guests
and potential guests through the internet. Your websites, and those of
third-party booking agents put "heads in your beds." Many of these
guests and potential guests are visually, hearing or cognitively
disabled and rely upon the internet and screen reader software to
choose hotels, plan meetings and social events and make online
reservations. You need to ask yourself whether your website is
designed to be accessible to the disabled public. It is good for
business and, it is the law.

Unfortunately, there are no established standards for website
accessibility because the DOJ withdrew its latest Notice of Proposed
Rule Making for website standards. Therefore, since your secrets are
only safe with an attorney, we recommend that you retain an
experienced ADA lawyer with Cyber Accessibility expertise to guide you
through the process. When your ADA counsel hires the website
accessibility specialist, all evaluations and recommendations may
remain confidential. We believe this is the most effective way to
prevent costly governmental investigations and protracted litigation.
This is Jim Butler, author of
www.HotelLawBlog.com<http://www.HotelLawBlog.com/> and hotel lawyer,
signing off. We've done more than $60 billion of hotel transactions
and have developed innovative solutions to help investors be
successful in bidding for hotel acquisitions, and helping investors
and lenders to unlock value from troubled hotel transactions.