TravelAbility Report: March 2019

OUR TAKE: Experts say there has been a nearly 200% increase in ADA website accessibility-related lawsuits between 2017 to 2018.  How will Google’s algorithm come into play? What can the travel industry do to be proactive? That’s where we hope play a significant role.

The TravelAbility Summit is the first-ever conference to bring together the travel industry with product and service innovators dedicated to improving travel experiences for individuals with physical, visual, auditory and cognitive disabilities. “The goal is to help bring accessibility to a higher level,” said Jake Steinman, founder of TravelAbility Summit.

Not sure if your website is compliant with accessibility requirements—or if it even needs to be? Perhaps the best place to start is by taking a cue from Domino’s. According to featured speakers at the upcoming TravelAbility Summit, including an attorney who specializes in defending hotels with Americans with Disabilities Act (ADA) claims, companies in the travel sector can learn a lot from Domino’s recent ADA-related legal setback.  

For those readers not familiar with the case: In 2016, Guillermo Robles filed a lawsuit against Domino’s after he had attempted, at least two times, to order a pizza from the food chain’s website and mobile app.  At issue? Robles is blind and uses screen-reading software that allow him to successfully navigate websites. As it turns out, Dominos isn’t one of them. 

Robles is just one of an increasing number of people with disabilities in the USA who are suing businesses they say are discriminating against them by not providing accessible websites as required by the Americans with Disabilities Act (ADA). In fact, ADA web accessibility-related lawsuits increased 181% from 2017 to 2018, with 814 cases in 2017 and 2,285 lawsuits filed in 2018, according to tracking by the accessible technology firm UseableNet,who says the pace of ADA lawsuits is equivalent to one per hour. 

“Website accessibility is the latest trend in ADA litigation and this ruling essentially provides a green light for a slew of new predatory lawsuits by attorneys using digital crawlers to target travel supplier’s websites that are not accessible,” says Jake Steinman, founder of the TravelAbility Summit.  “On the other side, there will also be a surge in spam e-mails from third-party web vendors trying to sell accessibility upgrades to anyone and everyone.  Travel Tripper’s Nate Lane recommends that companies should exercise prudence by requesting references and focus on those with developing travel websites. But what may motivate suppliers and even destinations to justify investing inaccessibility, even more, may be rumors that Google’s algorithm may eventually bury websites that are non-compliant off the first page of organic search results reminiscent to what happened to websites five years ago that were not mobile-friendly. The result of this was an explosion of innovative development that ultimately led to Responsive Design, which today is universally incorporated in every mobile design. Hopefully, history will repeat itself.” 

Robles’ case against Domino’s, which was originally dismissed in 2017 by a district court judge in California, was re-instated in January of this year unanimously by a three-judge panel of the U.S. Court of Appeals for the 9^thCircuit. In sending the case back for the lower court judge to decide, Circuit Judge John B. Owens wrote, “At least since 1996, Domino’s has been on notice that its online offerings must effectively communicate with its disabled customers and facilitate ‘full and equal enjoyment’ of Domino’s goods and services. While we understand why Domino’s wants DOJ to issue specific guidelines for website and app accessibility, the Constitution only requires that Domino’s receive fair notice of its legal duties, not a blueprint for compliance with its statutory obligations.”

The lawsuit has now been active for more than three years—and gained more ground this month when the Supreme Court denied Domino’s petition to hear its case and determine whether its website is required to be accessible to the disabled. Domino’s position in its request to the Supreme Court was the ADA doesn’t apply to websites and mobile apps since the law established in 1990 predates the birth of the modern web and no clear rules to follow regarding online accessibility exist. Attorneys for Robles say otherwise, and the Supreme Court’s refusal to hear the case means Domino’s must defend its position in court.

According to legal experts, the Supreme Court’s decision is a huge loss for the company and huge win for people with disabilities. It’s also another warning sign for the travel and hospitality industry, says Stuart Tubis, an ADA defense attorney who will be presenting at TravelAbility Summit. “All travel-related businesses should understand the legal liability of having a public website that isn’t accessible. It can cause a lawsuit.” Tubis regularly counsels businesses on the full spectrum of ADA compliance and represents their interests in civil litigation and Department of Justice investigations. Nate Lane, senior director of digital platforms, Travel Tripper & Pegasus, which specializes in helping hotels build accessibility into their websites, emphasizes the time is now to take the initiative. “Even before the Domino’s ruling we looked at accessibility as something that was mandatory, because so many of the lawsuits had merit. My advice is to not bother to debate the merits of an accessible lawsuit, but be proactive because it’s the right thing to do in the first place,” says Lane, who will also be presenting at the TravelAbility Summit. When asked how to evaluate the range of accessibility service providers, Lane suggested that they should make sure they have travel-industry related expertise, use a holistic approach, and have verifiable references. “Many hotels get into trouble with multi-vertical vendors who don’t understand the nuances of travel,” Lane continued. “The effect of this ruling for existing vendors such as us, will be to enhance and bring accessibility offerings to even higher levels.”

According to the Napa Valley News, California wineries have been hit hard with web accessibility lawsuits this year and when the marketing director of one of Sonoma’s most prominent wineries was asked why she finally made their website accessible, she said: “It’s the most effective form of customer service we can possibly offer.” 

TravelAbility Summit attendees will be able to pick the brains of five presenters with expertise in website accessibility.  Nate Lane, Travel Tripper; Stuart Tubis, ADA hotel defense attorney, Jeffers, Mangel, Butler,  Shenyse Lujan, Audioeye; Chris Lona, CL Designs.  

See the newly updated agenda here.  Register here.

This piece was updated on October 15, 2019.