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 | dpotts@jshfirm.com