The Top 5 Ways Hotels Get Served with a Disability Discrimination Lawsuit

By John Mavros Attorney at Law, Partner, Fisher & Phillips, LLP | September 30, 2018

Co-authored by Lauren Stockunas, Attorney, Fisher & Phillips LLP

To establish a claim of disability discrimination, an employee must prove that he/she is disabled, was performing his/her job competently, suffered an adverse employment action (i.e. termination, demotion, failure to hire, transfer, discipline) and the termination, for example, occurred under circumstances suggesting a discriminatory motive.

If the employee is successful in asserting these elements, then the hotel must rebut the employee's claims with legitimate, non-discriminatory reasons for the challenged employment actions.  Therefore, the key to defending a disability discrimination claim is proving that the hotel terminated the employee for a legitimate, non-discriminatory reason.  This means that the hotel needs to ensure that it understands its obligations under the various leave laws and train managers to enable them to effectively communicate with employees and gather needed documentation. 

Maintaining written policies, memorializing any verbal communications with employees, documenting analyses of possible accommodations, and recording any accommodations or leaves of absences ultimately provided are essential steps for avoiding costly litigation.  Below is an analysis of the top five ways hotels get served with disability discrimination lawsuits when they fail to be both proactive and reactive in openly communicating with employees and creating a paper trail.

1.  Not Having Appropriate Employment Policies Addressing Leaves of Absences, Including FMLA, ADA, and/or Sick Leave Where Applicable

The first step is to have clear documented policies addressing leaves of absences, including the Family and Medical Leave Act ("FMLA"), Americans with Disabilities Act ("ADA"), medical leave of absences generally, and/or paid sick leave when applicable.  Drafting comprehensive policies has two primary benefits:  (1) they serve as a reference for both supervisors and employees; and (2) they serve as essential documentary evidence to defend against employee claims and/or litigation. 

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Sales & Marketing: Selling Experiences

There are innumerable strategies that Hotel Sales and Marketing Directors employ to find, engage and entice guests to their property, and those strategies are constantly evolving. A breakthrough technology, pioneering platform, or even a simple algorithm update can cause new trends to emerge and upend the best laid plans. Sales and marketing departments must remain agile so they can adapt to the ever changing digital landscape. As an example, the popularity of virtual reality is on the rise, as 360 interactive technologies become more mainstream. Chatbots and artificial intelligence are also poised to become the next big things, as they take guest personalization to a whole new level. But one sales and marketing trend that is currently resulting in major benefits for hotels is experiential marketing - the effort to deliver an experience to potential guests. Mainly this is accomplished through the creative use of video and images, and by utilizing what has become known as User Generated Content. By sharing actual personal content (videos and pictures) from satisfied guests who have experienced the delights of a property, prospective guests can more easily imagine themselves having the same experience. Similarly, Hotel Generated Content is equally important. Hotels are more than beds and effective video presentations can tell a compelling story - a story about what makes the hotel appealing and unique. A video walk-through of rooms is essential, as are video tours in different areas of a hotel. The goal is to highlight what makes the property exceptional, but also to show real people having real fun - an experience that prospective guests can have too. The June Hotel Business Review will report on some of these issues and strategies, and examine how some sales and marketing professionals are integrating them into their operations.