The Hospitality Industry is Particularly Susceptible to ADA Website Accessibility Lawsuits
By Christine Samsel Attorney, Brownstein Hyatt Farber Schreck | March 18, 2018
This article was co-authored by
Co-authored by Jonathan C. Sandler, Shareholder, Brownstein Hyatt Farber Schreck
A year ago, the reaction to the title of this article would have likely been "what does the Americans with Disability Act (ADA) have to do with websites?" Today, anyone who follows the trends of consumer class actions around the country is well aware of the issue. According to recent reports, over 800 federal lawsuits claiming lack of website accessibility were filed in 2017, including many against hospitality companies/hotels. That number does not include state court filings (and in California alone, there were 100+) or the number of demand letters issued to allegedly offending entities or the cases filed thus far in 2018. The hospitality industry is particularly susceptible to these claims, because would-be plaintiffs need not even leave their homes to identify targets; they simply surf the web from wherever they happen to reside.
Traditional Interpretations of "Places of Public Accommodation" Are No Longer Reliable
Title III of the Americans with Disability Act ("ADA") has an expansive definition of "public accommodation" that includes private entities whose operations affect commerce and whose businesses are generally open to the public and fall within one of the enumerated categories in the statute, such as retail stores, hotels, restaurants, movie theaters, recreational facilities and doctors' offices. Traditionally, each of the enumerated categories of public accommodation is a physical location. However, of late, the categories are not always as narrowly construed as they were 10 years ago. In the statute, each category ends with the catch-all phrase "or other place …." This phrase is one of the hooks that the plaintiffs' bar is using to argue that businesses' websites-in addition to their physical locations-must comply with the ADA.
Courts across the country are split on whether a public website qualifies as a "place of public accommodation" under the ADA. The split centers on whether all commercial websites are places of public accommodation and thus subject to the ADA, or only those websites associated with brick-and-mortar businesses (i.e., those with physical locations). Throughout the country, courts typically adopt one of three positions: (1) places of public accommodation can only be physical structures; (2) places of public accommodation need not be physical structures; or (3) for a non-physical "place" to be a "place of public accommodation," it must have a sufficient nexus to a physical structure that constitutes a public accommodation. The latter two more expansive interpretations of the ADA are particularly problematic for the hospitality industry, which would be covered under either interpretation.