Maybe Starting a Regular Series?
A few weeks ago, I mentioned that I would be starting a series that just provides regular updates on recent cases in web accessibility. This week seemed like a good time to kick off this process.
Winn-Dixie and Calm Before the Storm?
Of course, the bombshell news this month is the April 7 decision in Winn-Dixie. I've always thought it was ironic that the recent hotbed of web accessibility litigation was in Florida because the 11th Circuit has always been a troublesome region of the country on this issue. While most people are likely too young to remember it, the 11th Circuit also brought us Access Now v. Southwest Airlines, 227 F. Supp. 2d 1312 (S.D. Fla. 2002), aff'd 385 F.3d 1324 (11th Cir. 2004)-- a case which I personally think held web accessibility back by at least a half dozen years. But that's the subject of another post. And this could well be the calm before the storm-- I'm expecting a summer full of district court cases trying to make sense of Winn-Dixie. I've already set forth my thoughts on Winn-Dixie at length. Today's post is about the rest of April 2021, which might seem to be a fairly boring month as far as web accessibility is concerned.
Lots of Hotel ORS Cases
It seemed that almost all of the cases that I read this month involved hotel online reservation systems (ORS). As I've mentioned on this blog more times than I can remember, hotel ORS cases are different from regular web accessibility cases because they don't usually involve any allegations that a website was inaccessible or unusable by a person with a disability. The information on the hotel website is perfectly accessible-- it's just that the plaintiff says there isn't enough of it. Specifically, there isn't enough information about the accessibility features of a hotel room. And, unlike regular web accessibility, the Department of Justice actually has a specific rule on this issue. Section 28 C.F.R. § 36.302(e)(1)(ii) of the Department's Title III regulations requires hotels to,
identify and describe accessible features in the hotels and guest rooms offered through its reservations service in enough detail to reasonably permit individuals with disabilities to assess independently whether a given hotel or guest room meets his or her accessibility needs.
This is such a popular topic that this paragraph now has its own name across almost every opinion-- it's called the "Reservation Rule." Perhaps because of this clarity in regulations, courts haven't been faced with the challenge of contriving legal subtleties like the "nexus" pre-requisite for web accessibility cases. This isn't to say hotel ORS cases are clean and simple. For instance, hotel ORS cases are pretty important to understanding how testers are treated by the courts. But one area that is entirely unique to this line of cases is how far a hotel needs to go in describing the accessibility features in their accessible rooms.
This is a new debate that a lot of us saw a mile away. Years and years ago, my friend Marc Dubin and I argued about this exact issue-- while it was not even a glimmer in a plaintiff attorney's eye. Marc asserted that people go to hotels and take advantage of a lot of amenities more than their guest rooms. For instance, they may want to use the swimming pool or they may be attending a conference in the hotel ballrooms. The accessibility of all of these features needed to be described. My position was that the regulations and DOJ's analysis didn't support a broad position. Instead, all that was required was a description of any barriers in the hotel room and the path of travel to the hotel room. Well, now that it's 2021, I'm sad to say that I won that debate with Marc because the courts have mostly taken a very narrow reading on DOJ's Reservation Rule. In fact, it's far narrower than I predicted.
A Quick Summary of Hotel ORS Cases
Even though hotel ORS cases are not an area most of us work in, it's probably useful to understand what the controversy is about, how the courts are interpreting it, and the lessons we can learn from it. In all of the hotel ORS cases, a person with a disability (usually a physical disability) claims that they visited a hotel website either as a tester or as a prospective guest and want information about a guest room's accessibility features. The hotel's website provides scant information about the accessibility of the room, sometime just labelling the room "accessible" with no details. The plaintiff, however, needs to know basic information about whether the room is wheelchair-accessible. Specifically, are the doors wide enough, are the beds separated enough, etc.
Because there are hundreds of ORS cases filling the court dockets, judges have gone to some length to have these cases tossed out-- and almost all of them do get tossed out. But, a few of these cases manage to find their way to patient judges who are willing to read the law more broadly. In this regard, two cases filed only a few days apart from two district courts in California are useful to compare. In both cases, the hotels both described the rooms as "accessible" and provided a listing of "other accessible amenities" both in the room and throughout the hotel. Both cases were filed by Orlando Garcia, a serial plaintiff in these ORS cases. In Garcia v. Patel & Joshi Hospitality Corp., 2021 U.S. Dist. LEXIS 67028 (C.D. Cal. March 19, 2021), the court agreed with Mr. Garcia that the DOJ Reservation Rule leaves open a "wide variation in the level of accessibility that travelers will encounter" and that Mr. Garcia may have been entitled to more information under the Reservation Rule. The court also found that the hotel's disclaimer that patrons could call the front desk about any questions about the hotel's amenities did nothing to relieve it of its duties under the Reservation Rule to post accessibility information on its website. Mr. Garcia's good luck ran out, however, two weeks later in Garcia v. E.L. Heritage Inn of Sacramento, LLC, 2021 U.S. Dist. LEXIS 68183 (E.D. Cal. April 2, 2021). Facing almost identical facts, the court noted that the DOJ Reservations Rule does not required an "accessibility survey" and that plaintiffs could expect "wide variation in the level of accessibility that travelers will encounter." But, crucially, the court also noted that the term "accessible" in this context is meant to be read as compliant with the ADA standards. This last factor was explained in more detail in Whitaker v. KK LLC, 2021 U.S. Dist. LEXIS 82544 (N.D. Cal. April 29, 2021), where the court cited 2010 technical assistance guidance from the Department of Justice that stated,
For hotels that were built in compliance with the 1991 Standards, it may be sufficient to specify that the hotel is accessible and, for each accessible room, to describe the general type of room..., the size and number of beds..., the type of accessible bathing facility..., and communications features available in the room.... Based on that information, many individuals with disabilities will be comfortable making reservations.
Id., at *6.
So, same facts, same laws and same regulations. But two different judges and so two completely different decisions. It's easy enough to peg this on politics (one judge is an Obama appointee and the other is a Bush appointee) but the real problem is that the regulations allow the kind of faulty reasoning used in the Heritage Inn of Sacramento case.
I see three problems with the court's reasoning. The first problem is that travelers have no way of understanding how a hotel intended to use the word "accessible" when describing a hotel room on its website. For instance, if a hotel ORS simply states that a bedroom is "accessible," does that really mean that it conformed with the 1991 Standards? Or does it conform with the 2010 Standards? Or does it mean it just happens to be a room that the hotel thinks is more accessible? Instead, if hotels are going to be permitted to rely on standards, they should at least be required to identify what those standards are.
The second problem is that the accessibility of a hotel room usually only focuses on the permanent features of a room. This was clarified in the 2010 DOJ regulation at 28 C.F.R. §36.406(b), which states that the ADA design standards only apply to "fixed or built-in elements." In a hotel setting, this makes some sense-- if a movable feature in an accessible room blocks accessibility, the hotel staff can easily remove it. This causes a headache for guests with disabilities but, in most cases, it may be an acceptable compromise. But there are features in rooms that can be semi-permanent (e.g. platform-mounted beds) that would be difficult or impossible to move on short notice.
A third problem is smaller renovations and alterations. Sure, a hotel can be built to comply with the Department of Justice accessibility guidelines. And, yes, major alterations or new construction would likely have to be designed by an architect, who (should) dutifully follow the current accessibility guidelines. But hotel maintenance staff make countless repairs and minor changes to a hotel every day-- and there is no guarantee that they fixed things correctly.
A better rule by the Department of Justice would have given better guidance. They should have required hotel to specify which (if any) accessibility standards an "accessible" room complied with. Second, they should require that moveable features (e.g. beds) include more detailed accessibility descriptions. And third, they should provide some assurance that alterations or renovations met current accessibility guidelines.
My Thoughts on What Hotels Should Disclose
While I'm no expert in this area, I think hotels should be up-front with the accessibility features in their hotels. If your hotel was built to modern standards, ask your architect what they were and put it up on your ORS. For example, instead of simply labeling your room as "accessible," identify it as "accessible (per 1991 ADA Standards)." Also, indicate if movable features like beds provide clear floor space and identify basic accessibility features. Your guests with disabilities deserve to know this-- and you'll save your maintenance people from rearranging furniture at 12a when your disabled guest checks in after that long flight.
But that's just to get past the hotel ORS requirements. Instead, I would be talk to your attorney and consider being up-front with a lot more. For instance, if your hotel's restaurant has physical barriers, disclose them. Why? Because everything I've talked about applies only to the ORS system-- your hotel still has a ton of accessibility obligations and your guests with disabilities will likely find them. If you have an older facility, you do have ongoing obligations to remove barriers where doing so is readily achievable-- but some barriers may well be beyond being readily achievable to remove. Letting guests know what to expect reduces surprises and risk for everyone.
What Can We All Learn?
Most of us don't work in the area of hotel ORS cases. Instead, most of our readers are focused on how to make websites and digital technologies accessible. Even though they don't involve the accessibility of websites, ORS cases still offer the rest of us valuable lessons.
One lesson is that DOJ should have foreseen these problems and written more specific regulations. When DOJ's regulations are not clear, courts will come to very different interpretations of how those regulations should be interpreted. This makes justice arbitrary. It also leaves people with disabilities without important information that they need, which also encourages litigation-- which then hurts businesses. In the web accessibility context, we've seen this happen because DOJ completely failed to launch its web accessibility rule. In hotel ORS cases, we're seeing it to a slightly lesser extent because the rules didn't provide enough clarity on what hotels should disclose. I hope that, as DOJ rushes to create a new web accessibility rule during the Biden Administration, it provides a sufficient level of technical guidance.
A second lesson is that judges have little hesitancy undercutting disability rights to reduce their docket sizes. Earlier this month, we saw the most dramatic example of this in the Winn-Dixie decision. Sure, that decision will help district courts in the 11th Circuit clear their dockets of web accessibility lawsuits but, taken literally, the Winn-Dixie opinion places disability rights at a lower level than any other area of civil rights. And we're seeing the same thing happen in hotel ORS cases. As courts interpret the language of the DOJ Reservation Rule more strictly, eventually the rule will have no meaning at all. Even today, any court can easily cite to a long line of cases for the idea that a hotel can simply call an inaccessible hotel room "accessible" on its website and satisfy the Reservation Rule. I doubt that's what DOJ intended when they wrote the rule.
I suppose the bottom line here is that the Department of Justice needs to be very careful and write a detailed rule for web accessibility. We've all wanted that rule for over a decade now. But we need to take a deep breath because history has demonstrated that shortcuts can have unintended consequences.
Nothing in this post should be interpreted as legal advice or as forming an attorney-client relationship. It is offered for educational purposes only. You should always contact a qualified attorney in your area to discuss your legal rights and responsibilities.
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