It seems like yesterday, but more than five years have passed since the Americans With Disabilities Act (ADA) went into effect. Today, most meeting planners know to take ADA requirements into consideration on site visits, during negotiations, and at the time of the meeting. However, at the contract stage, planners tend to let down their guard.
Many hotel and convention center contracts now include an ADA provision. Often, however, those provisions do not allocate responsibility in a manner that is reasonable or appropriate for the meeting sponsor.
ADA 101 Let's review the basics. Title III of the act prohibits discrimination on the basis of a disability by public accommodations. The act defines "disability" as a physical or mental impairment that substantially limits one or more major life activities of an individual; a record of having such an impairment; or being regarded as having such an impairment.
Further, the ADA defines a "public accommodation" as a private entity that owns, leases (or leases to), or operates a "place of public accommodation," (for example, a hotel, restaurant, convention center, theater, or museum). As such, both the meeting facility and the meeting sponsor are considered "public accommodations" under the act and are jointly responsible for complying with its requirements. Any violation--no matter whose fault--could be the responsibility of either party. The regulations, however, allow the parties to allocate compliance responsibilities.
There is little dispute that responsibility for compliance with the ADA should be divided along the lines of control. That is, in a contract between a facility and a meeting sponsor, the facility should be responsible for modifying the facilities (i.e., providing reasonable access to the building and its sleeping rooms, public rest rooms, telephones, and restaurants), and the meeting sponsor should be responsible for any "auxiliary aids" that may be needed, such as sign-language interpreters, braille copies of handout materials, or other accommodations required in the meeting room.
Such allocation is a good rule of thumb, but the parties can allocate responsibility differently and still fall within the bounds of "reasonableness." For example, it is fairly common for facility operators to agree to make not only structural modifications, but also provide any necessary auxiliary aids, as long as the group advises the venue of its needs ahead of time.
Sample Clause Once the parties determine the allocation of responsibility, their written contract must accurately reflect the terms. The party accepting responsibility for any ADA compliance should specifically agree to indemnify the other party against any liability that may arise from its failure to carry out its obligations. Such indemnification should be in addition to any general indemnification provision. Here is a sample provision (for a hotel contract):
"Hotel represents and warrants that, as a place of 'public accommodation,' it is in compliance to the extent applicable under regulations implementing Title III of the Americans with Disabilities Act (ADA). Hotel facilities, including, but not limited to, meeting space, rest rooms, dining areas, other common areas, transportation services, and sufficient guest rooms, shall be reasonably accessible and usable by persons with disabilities. In addition, as per the requirements of the Act, Hotel shall provide auxiliary aids for those attendees requiring them, provided Group informs Hotel in advance in writing of such need. Any extraordinary costs for special auxiliary aids requested by Group shall be borne by Group, provided Hotel notifies Group in writing. Hotel acknowledges that Group has no authority to remove, and shall not be liable or responsible for the removal of (or for the provision of any alternative to the removal of), any architectural barriers or communication barriers that are structural in nature at the meeting site. Further, Hotel shall indemnify and hold Group harmless from and against any and all claims and expenses, including attorneys' fees and litigation expenses, that may be incurred by or asserted against Group, its officers, directors, agents or employees on the basis of Hotel's breach of this paragraph or noncompliance with any of the provisions of the ADA."
Remember that the ADA also applies when an organization conducts a small meeting, administers a certification exam, or contracts with exhibitors. Special considerations for those circumstances will be addressed in a future column.
Our understanding of ADA requirements continues to evolve. It is critical, however, to agree how ADA responsibility is allocated and to ensure that the contract reflects that agreement. Without it, your organization may be liable for conditions completely beyond its control.