Hospitality Websites: The ADA's Impact on Impaired Individuals' World Wide Web Access
By Leora Halpern Lanz President, LHL Communications | August 26, 2018
Co-authored by Jonathan Freiberger, Partner, Freiberger Haber LLP, Melville, New York
It is no secret that the digital marketing world is constantly changing and continuously evolving. Since the rise of social media, marketers have been able to expand their audiences, directly target markets, and interact with customers in exciting and innovative ways. But has all this been evolving too quickly? Today, it appears that the digital marketing discipline has been stopped in its tracks in the face of new laws or regulations and creative lawsuits. Perhaps now is the time that we are obliged to think differently and shift our practices to stay abreast of digital marketing approaches and the legal implications of our marketing efforts.
The recent developments in litigation regarding the application of the Americans with Disabilities Act ("ADA") to website accessibility are important to note. The digital marketing realm must understand that its own evolution must involve a greater sensitivity to the protection of the rights of, and support for, all citizens.
Understanding the Origins
The Americans with Disabilities Act ("ADA"), a federal law passed in 1990, prohibits discrimination against people with disabilities in several areas, including employment, transportation, public accommodations and communications. In many instances, the federal government has issued guidelines that can be followed to ensure compliance with the ADA. According to the www.ada.gov website, Title III [of the ADA] "prohibits discrimination on the basis of disability in the activities and places of public accommodations" - businesses that are generally open to the public and that fall into one of the 12 categories listed in the ADA, such as restaurants, movie theatres, schools, day care facilities, recreational facilities and doctors' offices… and requires newly-constructed or altered places of public accommodation to comply with the ADA Standards." Notably, the definition of "places of public accommodation" also includes inns, hotels and motels.
An interesting legal question is whether "places of public accommodation" are limited to physical locations, or whether the definition can be broad enough to include digital locations - websites. If websites are deemed to be "places of public accommodation" they would have to comply with ADA. Federal courts are divided on this issue. As one court put it: