November 01, 2005.
Hotel Interactive, USA.
The hotel industry has recently become a significant target of U.S. Department of Justice (DOJ) investigations for compliance with the Americans with Disabilities Act of 1990 (ADA). Just this past spring, the DOJ initiated a sweeping investigation of more than 45 hotels in New York's theatre district alone for ADA compliance. The DOJ and various ADA watchdog groups have increased their scrutiny of hotels for ADA compliance and are filing lawsuits at a rapid pace. In light of this heightened scrutiny, it is critical that hotels evaluate both their hotel properties and guest procedures for compliance with the disability standards set forth by the ADA.
The ADA's Coverage of Hotels
The ADA is a federal civil rights statute that prohibits discrimination based on an individual's disability. Hotels are covered under Title III of the ADA as places of "public accommodation." An individual with a disability is a person who: (1) has a physical or mental impairment that substantially limits one or more major life activity; (2) has a record of such an impairment; or (3) is regarded as having such an impairment. The ADA also protects individuals who have a relationship or association with a disabled individual.
The ADA prohibits hotels from discriminating against, or denying services to, a guest because that guest has a disability or is associated with a person who has a disability. Accordingly, the ADA requires that hotels remove all structural and architectural barriers that would limit a disabled individual's access to the hotel, if the removal would be "readily achievable." Moreover, newly constructed hotels and properties that undertake alterations, must be made "readily accessible" to disabled individuals, unless such accessibility would be "structurally impracticable."
Importantly, the ADA imposes more than just structural requirements on hotels. A hotel must ensure that its practices, policies, and procedures allow disabled guests an equal opportunity to enjoy the hotel's services and amenities. Hotels often overlook a vital component of ADA compliance - the training of their staff on their obligations to guests under the ADA. Every member of a hotel's staff, from the reservationists to the engineering staff, must be trained on the hotel's policies and procedures regarding guests with disabilities. An untrained staff member who does not understand the hotel's accommodations for guests with disabilities may lead to increased liability for a hotel.
A hotel's compliance with the ADA is determined by the property's conformity to a set of complex regulations that set forth the ADA requirements. The extent of the hotel's duty to comply with the ADA and its regulations depends upon a variety of factors, including when the hotel was constructed; whether the hotel is registered as an "historic" building; and whether the hotel has undergone major renovations. For example, a hotel built more than 80 years ago, but renovated after January 1992, must comply with the ADA regulations to the "maximum extent feasible." However, any newly constructed hotel occupied after 1993 must meet a higher standard of physical accessibility.
In addition to construction and renovation requirements, the ADA requires a hotel to implement policies, practices, and procedures to allow disabled guests an equal opportunity to utilize the hotel's services. A hotel must also provide auxiliary aids and services to disabled guests, including but not limited to TDD devices, visual alarms, grab bars, roll-in showers, Braille and large print materials, and closed-caption televisions.
Penalties for Violating the ADA
Both the DOJ and private parties may bring lawsuits against hotels that are not compliant with the ADA. In such cases, a court may issue orders requiring that the hotel be made readily accessible to individuals with disabilities, as well as orders requiring the modification of policies, practices or procedures. Additionally, in a suit brought by the DOJ, the court may award monetary damages and civil penalties. The maximum penalty that the court may assess in the first lawsuit against a hotel is $55,000. If a hotel continues to violate the ADA, the maximum penalty in each suit after the first lawsuit is $110,000.
Proactive Measures to Comply with the ADA
With the strong threat of DOJ ADA compliance investigations and lawsuits filed by watchdog groups, it is essential that hotels evaluate their compliance with the ADA. We recommend that all hotels develop an ADA compliance checklist and review their level of ADA compliance as it relates to the physical structure and design of the hotel property. Hotels should also develop ADA compliance guidelines for all employees, and conduct regular employee ADA training sessions. These guidelines and training sessions will ensure that hotel employees thoroughly understand both the hotel's policies regarding guests with disabilities and how to properly interact with disabled guests.
Given the potential legal liability at stake, hotels should be on alert and take immediate action to best protect themselves in the event of a government investigation or private lawsuit.
Krupin O'Brien LLC is an associate member of the American Hotel and Lodging Association, the National Restaurant Association, and the Florida Restaurant and Lodging Association. The firm is sponsoring a Tuesday Nov. 15 presentation, "ADA for the 21st Century: Five Star Service for Guests with Disabilities," from 11 a.m. to 2 p.m. at the China Grill in Miami Beach, Fla. To register, contact firstname.lastname@example.org or (202) 467-2493.
Elisabeth Moriarty-Ambrozaitis is an associate with Krupin O'Brien LLC, a nationally recognized labor law firm exclusively representing employers in the areas of labor relations, employment law, business immigration and related litigation. Moriarty-Ambrozaitis represents clients in employment-related disputes and counsels employers on diverse employment and labor law matters. Moriarty-Ambrozaitis is experienced in counseling and representing clients in the hospitality industry.
Source URL: http://www.hotelinteractive.com/hi_index.asp?page_id=5000&article_id=5226.
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