Q&A: How Title III of the ADA Applies to Restaurants, Hotels, and Other Businesses

March 12, 2019 BY JACLYN LEDUC

In recent years, accessibility lawsuits have been on the rise. The number of digital accessibility lawsuits alone nearly tripled in just one year, growing from 814 cases in 2017 to 2,258 cases in 2018. Many hotels, restaurants, and other businesses have been hit with an accessibility lawsuit for things like inaccessible websites, incomplete or inaccurate service animal and reservation policies, and architectural violations.

Person using a cane walks into a hotel.

The fact is that the Americans with Disabilities Act (ADA) prohibits places of public accommodation like hotels, restaurants, and other business from discriminating against people with disabilities. In the webinar, Title III of the ADA: How Does it Apply to Hotels, Restaurants, and Businesses?, Marc Dubin, former Senior Trial Attorney of the US Department of Justice and CEO of ADA Expertise Consulting, discusses common ADA violations in the hospitality and food service industries and covers other important information such as new reservation requirements for places of lodging.

Below is an excerpt from the Q&A portion of the webinar, where Marc goes into further detail about topics like following service animal laws and writing a good accessibility statement.

What if the guest is lying about the service animal? How do we identify?

MARC DUBIN: I would not start with assuming they’re lying. Be aware that your staff should be trained to know that any dog, any breed, any size, any weight can be trained to individually assist a person with a disability.

Individuals may have disabilities that are not readily apparent– post-traumatic stress disorder, autism, diabetes– all of those disabilities have had dogs trained to assist them with their disability. Epilepsy, seizure alert dogs– if the dog is trained to individually assist the individual to perform a task related to their disability or provide a service related to their disability, they are covered and protected under the ADA.

If you are not sure whether it’s a service dog or it is not a service dog, you have to do what you have to do in all situations with service dogs: You only get asked two questions– as frustrating as it may be, you can ask them is that dog needed because of a disability? You are not entitled to ask what the disability is. If they say, yes, you are then allowed to say, OK, what is your dog trained to do? What task is it trained to perform, what service is it trained to provide? That’s it.

And then they have to answer. And they may say, it’s trained to lick my face when I get upset. It may be trained to pick things up when I drop them. It may be trained to alert me to a seizure. It will pull on the leash. The answer you get there, you have to accept.

Now how do you protect yourself? One, [the service animal] has to be under control at all times. So it has to be on a leash unless the disability itself prevents them from holding a leash. So the first thing to do is make sure that when that guest comes in, that the dog is on a leash and make sure they know it has to stay on a leash.

Let them know it has to be with them 24 hours a day. They can’t just check into your hotel, leave the dog in the room, and go to the pool– or go down to the beach. They have to take the dog with them. They cannot leave it alone. Same within a restaurant. You have the right to tell them that [the service animal is subject to] the one-bite rule. You get to ask [the owner] to fix the problem.

Person with a service dog enters a restaurant with a sign that says, "Service Animals Welcome."

If they cannot get the dog under control, then you are allowed to ask them to remove the dog from the premises. You have to invite them back in without the dog, but you can say, that dog is out of control, you’re not going to be able to get it under control, the dog has to leave the premises.

It also has to be trained. Should the dog poop or pee on anything, you cannot charge a fee for cleaning up after the dog. You can charge them if they damage the property as long as you have a damage fee policy for other guests as well.

What should be included in a good web accessibility statement?

MARC DUBIN: You should include, first of all, the recognition that you are trying to ensure compliance with WCAG 2.0– that that is your goal and that is your effort.

Two– that you make sure they understand that some guests are going to have problems with their website and that if they experience a problem, you should give the name and contact information of somebody on staff who they can call directly and have a conversation with. Give that contact information on that web accessibility statement.

Three– you should make sure the web accessibility statement is prominently displayed– not hidden somewhere where they can’t find it. There’s a lot of website accessibility statements that are very brief and cover the minimal aspects of what you should have. What I would urge you to do is give me a call. I can talk to you about it. It doesn’t take a great deal of time or effort for me to write one for you, and I would try to make it as complete as possible based upon your needs.

But the three things you absolutely should have is a recognition that you’re trying to do a WCAG compliance, who they need to reach and how to reach them. Part of the reality is that stuff on the web is accessible 24 hours a day.

If you’re having trouble getting that information from the web because of inaccessibility, you need to be able to give them an alternative that works for them– whether it’s a front desk staff person– if you have a front desk that’s staffed 24 hours a day. But you want to make sure that what you’re really trying to do here is provide the information in an alternative way rather than the website if you don’t believe your website is really accessible.

I’ve done a lot of automated testing of hotels around the country, and I haven’t found one, frankly, that has not had violations. The concern I have then is what are those conversations with web developers that resulted in those websites being identified as a violation of WCAG 2.0 simply by using ADAScan.com– a free website scan device.

It seems to me that the issue is going to get worse and worse as more and more litigation occurs. Just the numbers that I showed you earlier highlight how important it is to do the right kind of testing of the website and discussion with web site developers and putting information in your contracts about website accessibility.

A good accessibility statement checklist: state WCAG 2.0 compliance, include contact information, and make it easy to find.

At the end of the day, I see it this way– if you have an architect who designs and constructs your building, they have to design and construct it not just in compliance with state building code, but design and construct it in compliance with federal ADA standards. I see websites, frankly, quite the same way.

If they’re going to design and construct your website, they need to design and construct it in compliance with WCAG 2.0. Now even if there is a dispute among the circuits about the applicability of that, it’s a safe harbor. If you have made a good faith effort to comply with WCAG 2.0 and you’ve got an accessibility statement that allows guests to have an alternative way of getting the information, then even if you are sued, you’re in a much better position to turn back to the architect, turn back to the website developer and say, in my contract, you agreed you would build this in compliance with the ADA and WCAG 2.0 or with the ADA standards for accessible design for architects.

Does the “readily achievable standard” also apply to websites?

MARC DUBIN: Yes. Essentially, it does. But what you really need to look at there is that the expense of fixing a website– just like with buildings, it’s an ongoing obligation. Let’s assume you’ve built a website and the website is now updated as they should be constantly.

Is the new update accessible? Does the code that’s behind the website that is supposed to be accessible to somebody using a screen reader– is the new information accessible? So on an ongoing basis– just like barrier removal on an ongoing basis is required– you really need to be testing your website on an ongoing basis as you update information.

In most cases, once the website developer has the test results from the manual testing and the automated testing and the testing using adaptive equipment– which is what we try to do for clients– once you have that in hand, have the discussion with your website developer. As they put new content onto the website– like a new photograph or new video– they’re going to know from the previous testing results and the previous remediation discussions that they should not make the mistake that they made the first time again.

They should use the remediation that they used to fix the problems the testing results provided to them that we discussed with them to ensure on an ongoing basis that that website is accessible. Now, at some point, the readily achievable barrier removal argument is really a basis for saying, I can’t afford more than this.

But, at the end of the day, once you’ve got the website designed in such a way that it works for the message that you’re trying to provide, then you’re really talking about having your website developer trained and educated about WCAG 2.0 and how to build a website accessibly. And that’s what really has to happen here to make any significant difference.

Watch the full webinar below to learn more about how Title III of the ADA applies to hotels, restaurants, and other businesses.

(Plain text transcript and interactive transcript are available)

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