The hospitality industry is ever more dependent on the internet and mobile applications. Websites and apps are now the primary face that a hospitality provider presents to the world, and to their guests and customers until they are physically present. Loyalty programs are increasingly web and app focused as well. Booking sites are vying with providers to capture transactions on their sites. In particular, hotels and resorts don’t want to end up maintaining marketing and promotional sites while transactions are completed elsewhere. This all means that hospitality industry websites and apps have becoming increasingly sophisticated and feature-rich – and increasingly more important to the customer experience and the bottom line.
With this growing reliance on websites and apps, web accessibility should be a priority. Unfortunately, as in most other industries, this simply isn’t so. Indeed, in many cases, hospitality professionals don’t even know what web accessibility is. Unfortunately, the hospitality industry is increasingly finding out about web accessibility in the worst possible way – by being on the wrong end of claims, government enforcement actions and lawsuits. Working with clients on web accessibility matters, we have seen that the hospitality industry is one of the prime targets of a surge in demand letters and litigation. Based on our experience, companies that don’t take a proactive approach to web accessibility will find themselves particularly vulnerable.
Why Web Accessibility Is Important
Simply put, an accessible website or mobile application is one that can be navigated and used successfully by disabled individuals, including blind, low vision, deaf, hearing-impaired, and motor- and cognitive-impaired individuals. Screen-reader software or other assistive technologies, and perception or movement difficulties, require the website to observe certain guidelines and standards so the user can meaningfully access the site or app.
Like the vast majority of websites, your company’s sites are highly unlikely to meet web accessibility technical standards. This likely violates the Americans with Disabilities Act (ADA) and may violate other federal and state statutes as well, putting your company at risk of enforcement actions and litigation. Disabled individuals are a significant and growing portion of the population, and meeting their needs makes good business. From an ethical standpoint, making your websites and apps accessible to the disabled is the right thing to do. For all these reasons and more, you should be focusing on web accessibility.
The Legal Landscape
Web accessibility falls under several federal statutes and may also implicate state and local statutes and regulations. For the private sector, the key statute is the ADA. Title III of the ADA covers public accommodations, i.e., a “place of public accommodation” operated by a “private entity.” More specifically, Title III covers access by disabled individuals to goods and services offered by the private entity in or through the public accommodation. Title I covers actions by employers and prohibits discrimination against employees and prospective employees.
Title III and its regulations were largely enacted before the World Wide Web existed. As a result, the initial regulations are silent on web accessibility. Despite ongoing efforts, ADA regulations have not been updated to deal expressly with web accessibility. Application of the ADA and its regulations to websites and mobile apps is thus complex and uncertain.
The definition of public accommodation was written for brick-and-mortar businesses, so its application to websites is not straightforward. Sites selling goods and services are likely covered, but other sites may be as well. In some circuits, the site must be part of an off-line business. Sites used in offering an off-line service (e.g., online course materials for college courses) are almost certainly covered, as are media sites. However, other sites may still be covered, depending on a variety of factors. Under Title I, sites aimed at employees and candidates need to be accessible as well, subject to certain exceptions.
The Technical Territory
An accessible site accommodates the needs of disabled users. For example, blind people use screen readers, while people with low vision can’t read sites with low contrast and need to resize text. Hearing-impaired users need captioning. In many cases, disabled users need to navigate the site with keyboard commands, not a mouse.
The leading technical standard for web accessibility is WCAG 2.0 (web content accessibility guidelines 2.0). WCAG 2.0 has three compliance levels: A, AA and AAA. AA has emerged as the de facto legal standard for web accessibility in the United States (and elsewhere). Since WCAG 2.0 is neither a regulation nor an implementation guide, interpreting and applying it presents significant challenges to counsel, companies and web developers.
The Regulatory Regime
Over the years, the Department of Justice (DOJ) has initiated several rulemaking processes for web accessibility, all without issuing final regulations. Previously, standards for federal government websites under Section 508 of the Rehabilitation Act were borrowed for evaluating private sites. More recently, both DOJ enforcement and private litigants have turned to WCAG 2.0 level AA.
Regulations are coming but not any time soon. In 2016, DOJ withdrew a long-standing Notice of Proposed Rulemaking and replaced it with a Supplemental Advance Notice of Proposed Rulemaking (SANPRM) that covered only state and local government entities under Title II, with Title III regulations to follow. The SANPRM comment deadline was extended to October 7, 2016. EEOC regulations covering Title I compliance will likely apply WCAG 2.0 level AA, but these are also in regulatory limbo.
With these continued delays, final regulations are unlikely until the end of this decade. Unfortunately, companies can’t watch and wait. DOJ’s position is that ADA compliance is a current obligation, regardless of regulatory status. Litigation is surging. In this era of regulatory uncertainty, determining which websites must comply with ADA, what constitutes compliance and how to approach these issues requires skill, care and judgment.
Accessibility and Hospitality
Hospitality industry websites are particularly likely to be considered “public accommodations” – after all, the first two types of public accommodations listed in the ADA are “an inn, hotel, motel, or other place of lodging” and “a restaurant, bar, or other establishment serving food or drink.” In addition, hospitality websites are particularly likely to be used to consummate transactions – a critical factor in determining whether the site itself functions as a public accommodation. Finally, aside from booking sites, hospitality websites tend to be associated with brick-and-mortar businesses, which in certain federal circuits is an important factor in determining that the ADA applies.
In addition to the ADA, airlines and sites that book air travel need to be aware of regulations under the Air Carrier Access Act (ACAA) that are already in force. The ACAA was amended in 2013 to require all “core functions” on websites and kiosks to be WCAG 2.0 AA compliant by June 30, 2016. Core functions include booking or changing reservations (including amenities); checking in; and accessing your itinerary, flight status, frequent flyer account, flight schedules and carrier contact information. All remaining webpages must comply by December 2016. (Notably, mobile applications are not covered – a sign of how quickly the digital world evolves.)
Litigation and Enforcement
The fastest growing concern in web accessibility litigation stems from the plaintiffs’ bar. Several law firms have been sending out dozens (if not hundreds) of demand letters, seemingly based solely on limited automated testing. Since the ADA allows only for attorneys’ fees, these cases often turn to state statutes to capture money damages. This trend has contributed to a 64 percent rise in ADA litigation this year over last year. The boom is so intense that one company may receive multiple demands and claims from different plaintiffs’ firms, all citing web accessibility violations. However, this is far from your only concern.
DOJ actively enforces the ADA in web accessibility matters, through investigations, enforcement actions and intervening in private lawsuits. State and local anti-discrimination agencies also actively pursue enforcement actions. Disability advocacy groups and attorneys specializing in disability matters are also increasingly active. Meanwhile, regulatory uncertainty and aggressive DOJ enforcement create an atmosphere where defending a claim may seem less palatable than a relatively modest settlement, even considering the substantial cost of web accessibility compliance.
Recent DOJ settlements have imposed requirements well beyond mere compliance. A 2014 consent decree involving H&R Block required the company to designate an employee as a web accessibility coordinator, adopt an approved web accessibility policy, appoint a web accessibility committee, seek web accessibility feedback on its sites, train customer assistance personnel in assisting users with disabilities, provide employee web accessibility training, factor accessibility efforts into employee performance reviews, conduct automated web accessibility testing, form a user accessibility testing group (including blind, deaf and physically disabled individuals), escalate accessibility bug fixing, retain a web accessibility consultant and provide twice-yearly compliance reports for a period of five years. The plaintiffs’ bar has sought to apply these standards in their settlements and judgments as well.
What You Should Do
You need a web accessibility strategy. Most companies don’t have one, due to lack of awareness or having the issue fall between the cracks of IT, marketing and legal functions. Even employees dealing with ADA matters often focus on employee and physical barrier issues (e.g., ramps, bathrooms, etc.), not web accessibility.
Web accessibility needs proactive attention as an internal corporate initiative. Reactive attention, in response to government enforcement or the threat of private litigation, is not the best way to approach web accessibility. Even if enforcement or a demand letter does find you, you will be far better off if web accessibility efforts are already underway.
In order for a web accessibility initiative to succeed, someone must own web accessibility, with legal, IT, digital and content teams on board. The owner needs to plan strategy and implementation, marshal assets, combat internal resistance, get management buy in, fight for budget and provide momentum.
An overall project plan is critical, covering at least the following steps:
- Identify all websites and mobile apps.
- Determine which sites and apps fall under the ADA.
- Prioritize relevant sites and apps, based on compliance issues, site traffic, litigation risk, life cycle and business criticality.
- Audit sites for compliance, using automatic and manual testing and analysis, including testing by disabled testers, often with the help of consultants.
- Develop a remediation plan for each site and app. Couple with other website enhancements to enhance ROI, but do not delay.
- Remediate sites and mobile apps.
- Post-remediation, test for compliance.
- Monitor and test on an ongoing basis.
- Train personnel to maintain compliance.
- Ensure that new sites and apps and any major relaunches incorporate web accessibility from the start – retrofitting remediation is far more expensive than building native web accessibility.
- Throughout, counsel must monitor and respond to the changing regulatory, litigation and technical landscape, and factor changes into project planning and execution to ensure compliance and mitigate risk.
Web accessibility is a rapidly evolving area and companies must face and embrace its challenges. While it may be painful at first, in the long run there will be significant gains: Compliance and litigation risk will be minimized, technical compliance will become routine and ongoing costs will diminish. Disabled customers and potential customers will be more satisfied and more loyal, bringing in business that would otherwise be lost. When your websites and mobile applications are accessible, everybody wins.
Published August 31, 2016.
