The JSH Reporter JSH Reporter - Fall 2017 | Page 13
ACCESSIBILITY CLAIMS ARTICLE
013
THE NUMBER OF WEBSITE-BASED ADA CLAIMS
WILL ONLY CONTINUE TO INCREASE WITH TIME,
AND TAKING THE TIME NOW TO ENSURE YOUR
ORGANIZATION’S WEBSITE IS ACCESSIBLE
AND ADA-COMPLIANT CAN SAVE YOUR
ORGANIZATION THOUSANDS IN THE LONG RUN.
Under the ADA’s implementing regulations, hotels must “[m]
odify [their] policies, practices, or procedures to ensure that
individuals with disabilities can make reservations for accessible
guest rooms during the same hours and in the same manner
as individuals who do not need accessible rooms.” 28 C.F.R. §
36.302(e)(1)(i). Ms. Brooke alleges that these hotels did not allow
her to book an accessible room online, preventing her from
reserving a room at those hotels.
Importantly, these claims can only be brought under the
ADA, as the newly amended Arizonans With Disabilities Act
expressly excludes websites from its definition of “public
accommodations.” The damages a Plaintiff can recover, then,
are more limited without those potential state law penalties. Still,
under the ADA, a Plaintiff can obtain injunctive relief and recover
his or her attorney’s fees if the claim is successful. And given
how quickly and cheaply a Plaintiff can “test” whether a hotel’s
website is compliant, we can expect to see more and more of
these claims as time goes on. Other website-based claims are
sure to follow for the same reason: the very low cost of testing
compliance.
As with prior Title III cases, plenty of defenses are available. If
a Plaintiff is not likely to actually visit the accommodation in
question, an entity can defend based on lack of standing, and
if an entity remedies the alleged violation, it can defend based
on mootness. In certain cases, an entity can even defend on
the basis that there is no “nexus” to a physical place of public
accommodation. But, as with prior Title III cases, actually
presenting these defenses can be costly, especially because the
entity may ultimately be on the hook for the Plaintiff’s attorney’s
fees as well.
The best defense to these claims, ultimately, is preventing them
in the first place. The number of website-based ADA claims will
only continue to increase with time, and taking the time now
to ensure your organization’s website is accessible and ADA-
compliant can save your organization thousands in the long run.
ABOUT THE AUTHOR DAVID POTTS
Dave practices in the areas of employment law, general civil litigation, commercial and business
litigation, and wrongful death and personal injury defense.
602.263.1708 | [email protected]