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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Social Media: Getting Personal

There Social media platforms have revolutionized the hotel industry. Popular sites such as Facebook, Twitter, Pinterest, Instagram, Snapchat, YouTube and Tumblr now account for 2.3 billion active users, and this phenomenon has forever transformed how businesses interact with consumers. Given that social media allows for two-way communication between businesses and consumers, the emphasis of any marketing strategy must be to positively and personally engage the customer, and there are innumerable ways to accomplish that goal. One popular strategy is to encourage hotel guests to create their own personal content - typically videos and photos -which can be shared via their personal social media networks, reaching a sizeable audience. In addition, geo-locational tags and brand hashtags can be embedded in such posts which allow them to be found via metadata searches, substantially enlarging their scope. Influencer marketing is another prevalent social media strategy. Some hotels are paying popular social media stars and bloggers to endorse their brand on social media platforms. These kinds of endorsements generally elicit a strong response because the influencers are perceived as being trustworthy by their followers, and because an influencer's followers are likely to share similar psychographic and demographic traits. Travel review sites have also become vitally important in reputation management. Travelers consistently use social media to express pleasure or frustration about their guest experiences, so it is essential that every review be attended to personally. Assuming the responsibility to address and correct customer service concerns quickly is a way to mitigate complaints and to build brand loyalty. Plus, whether reviews are favorable or unfavorable, they are a vital source of information to managers about a hotel's operational performance.  The February Hotel Business Review will document what some hotels are doing to effectively incorporate social media strategies into their businesses.