Tag Archives: marriott

Adventures in Discrimination and Intimidation at the Marriott Courtyard Santa Fe

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Below is the guts of the letter we sent to Marriott and Fine Hospitality Group, the management company at the Marriott Courtyard Santa Fe. We had reserved a room at the Santa Fe Courtyard Marriott for March 15 and 22, on our way to and from a vacation in Phoenix.  On the 15th, our request for an accommodation under the Americans with Disabilities Act resulted in a police response.

I want to preface this by recognizing that we have a weird sort of privilege — the “sitting in a hotel room waiting for the police to arrive without fearing for your life” privilege — that made this incident stressful and illegal but not, ultimately, fatal. This does not reduce the extreme danger hotel personnel were willing subject their guests to in pursuit of an ADA violation.

Update: The Fine Hospitality Group (not Marriott) reached out and the upshot was that they comped us that night and (in theory) a future night, and promised discipline for the manager and training for staff.

Here’s what happened:

After we checked in and got to the room, it became clear that the bed was too low for Tim to be able to easily transfer in or out from his wheelchair. This is a fairly common problem that can be solved by either putting blocks under the legs of the bed or adding a second mattress on top. We called the front desk, requested this modification and were told “no.” The staff member explained that the way the bed was set up did not permit adding anything to raise the legs of the bed. We suggested that a second mattress could be placed on top of the first; this suggestion was rejected out of hand (“no”). We asked if there were any extra mattresses in the hotel. “No.” (This seems unlikely but who knows.) We asked if there were any empty rooms from which a mattress could be moved. “No.” The staff person then asked if we wanted to talk with the General Manager. Yes, we said, we would.

The General Manager got on the phone and we went through a similar litany of requests and refusals, but the GM added that the room was set up precisely as required by the ADA and therefore could not be altered. As an initial matter, this is not true: ADA regulations and standards do not prescribe a minimum or maximum bed height. But it also doesn’t matter. In addition to requiring certain basic physical and architectural configurations, the ADA also requires that businesses provide reasonable modifications to policies, practices, and procedures. I explained this to the GM, who continued to insist that the room was as legally required and no changes could or would be made. We explained that we were lawyers who were familiar with applicable law, and that this simply was not true. He stood firm on his refusal to make the required modification. Sensing that this conversation would not result in the modification we needed, we said that we’d deal with the room as it was set up but would take up the matter with Marriott’s legal department. We all rang off.

The staff person, the GM, and both Tim and I were entirely calm throughout the call. We were all firm in our respective positions, but no voices were raised, no inappropriate language used, and no threats made.

Less than a minute after the call ended, the GM knocked at our door and told us we would have to leave the hotel. We said no, we did not intend to do that. He said he would call the police.

Approximately 20 minutes later, four fully-armed officers from the Santa Fe Police Department knocked at our door.  We invited them in and Tim explained the above interactions and expressed our desire – it was by that time around 9:10 p.m. – to stay in the hotel so we would not have to pack up and try to find an accessible hotel at that time of night. One of the officers asked what threats we had made. Tim explained that there had been no threats. The officer informed us that the GM had told the police that we had threatened to go door-to-door through the hotel, knocking on doors and harassing guests. There is no other way to characterize this than as a lie, and a dangerous one in that it was used to invoke police intervention in an otherwise calm albeit disappointing interaction. Tim explained to the police that we had not done this, and that it would make no sense for us to anger other hotel guests, who had nothing to do with the situation.

It was my impression that the police were somewhere between puzzled and bemused that they had been called out to discuss wheelchair accommodations. They were professional and friendly throughout.

After the officers had heard us out, one of the officers went to negotiate with the GM on our behalf. The officer returned to say that the GM would “allow” us to stay provided there were no further “issues or threats.” Although, given the exchanges that had brought us to this point, this was a pretty humiliating request, we agreed, the officers left, and we stayed the night.

This entire interaction violated both the requirement to make reasonable modifications to policies, practices, and procedures, 42 U.S.C. § 12182(b)(2)(A)(ii), and the prohibitions on retaliation for opposing discrimination and interference with and intimidation of people exercising or attempting to enjoy their rights under the statute, id. § 12203(a), (b). Indeed, calling the police is at the extreme end of interference and intimidation.

In our letter to Marriott and the management company, we proposed several measures to address this discrimination:

  1. Training for all staff of the Santa Fe Courtyard on the requirements of the ADA, and specifically the requirements for reasonable modifications;
  2. Communication to all U.S.-based Marriott and franchisee/licensee staff that, under no circumstances, are they to involve law enforcement in the discussion of the accommodations and modifications needed by guests with disabilities;
  3. Reprimand to go into the personnel file of the General Manager (whose name we never got); and
  4. Refund of our payment for the room on March 15 (we have, of course, cancelled our reservation for the return trip and will not be staying at that hotel in future trips to Santa Fe).

Stay tuned! I’ll update the post if we receive a substantive response from Marriott or Fine Hospitality Group.

New Rule: Remedial Scotch

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New rule: when we arrive at a hotel at 2:00 in the morning — a hotel that has confirmed by phone and fax that it has reserved for us a room with a roll-in shower — to find, after unloading our voluminous luggage (shower chair; giant duffel; garment bag; suitcase; suitcase; computer wheelie; backpack), checking in, and tipping the helpful bellman who has transported this unGodly collection of luggage to the room, that the room has only a tub and that, in fact, no room with a roll-in shower is available that night (“night”), there will be a member of the ADA defense bar available on-call to secure alternative accommodations and to provide a nightcap of very very expensive Scotch.

These are the facts:

1.    The hotel had at least one room with a roll-in shower.

2.    The hotel confirmed — several times* —  that it had reserved a room with a roll-in shower for us.

3.    This was incorrect. When we arrived, there were no roll-in-shower rooms available.

4.    The hotel had at least one non-roll-in-shower room available — the one with the tub that they sent us to with our mule-train of luggage in tow.

5.    At least one of the rooms with a roll-in shower was occupied by someone who did not need it (this fact related to us by the night manager).

This is the law:

1.    Title III of the ADA prohibits discrimination on the basis of disability in places of public accommodation, including hotels. 42 U.S.C. § 12182(a).

2.    Hotels are required to provide rooms with roll-in showers in proportion to the total number of rooms.  DOJ 2010 Standards for Accessible Design, Table 224.2.  I’m guessing that this hotel was required to provide at least nine such rooms; every hotel is required to provide at least one.

Image: Roll-in shower.

3.    Hotels are required to

[e]nsure that accessible guest rooms are held for use by individuals with disabilities until all other guest rooms of that type have been rented and the accessible room requested is the only remaining room of that type;

    and

[r]eserve, upon request, accessible guest rooms or specific types of guest rooms and ensure that the guest rooms requested are blocked and removed from all reservations systems.

28 C.F.R. § 36.302(e)(1)(iii) and (iv).

So there’s pretty much no question that the hotel violated the law.  And there’s no question that the violation had consequences: after flying across the country and arriving at 2:00 in the morning, Tim would not be able to shower when he woke up later that day.

The problem is, while there were consequences for Tim, there will be no consequences for the hotel.  Title III of the ADA has no damages remedy.  Truth is, we would be fairly unlikely to bring a lawsuit for damages.  We didn’t want damages; we wanted a useable hotel room.  We wanted to be able to do what every weary traveler wants at 2:00 a.m. — to check in and go to sleep; NOT to travel up and down the elevator with our piles of luggage, have a long — pleasant but unfruitful — conversation with the night manager, wait through long sessions between the night manager and his computer terminal, finally settle for the (inaccessible) room at 3:00, and (Tim) be unable to shower the next morning.

In other words, we just wanted the system to work.

But wait!, you say, Title III has an injunctive remedy!  The court can order the system to work, right?

Well first of all, of course, only after a lawsuit, which can take anywhere from two to 12 years.  By then, we’d be home and Tim would have showered, repeatedly, in our very own roll-in shower.

But more importantly, the hotel, in a case like this, would almost certainly argue** that Tim has no standing to sue unless he can specify the date on which he will return to this precise hotel. And while many people travel repeatedly to the same hotel, many don’t.  That’s the point, right?  When you’re planning travel to a new city, you want to be able to pick up the phone or go online, make a reservation, show up, and have a room you can use.   The problem is, under the current system, there is very little incentive for this system to work for people with disabilities:  no damages remedy; and no injunction unless you plan to come back to the very same hotel AND have the time and energy for a lawsuit.  Given this, the hotel knows that it doesn’t really need to comply.

So — new rule: every ADA defense lawyer who makes these bone-headed standing arguments must register on an ADA Compliance Resolution List and provide a number where they can be reached 24 hours a day.  When one of these damagesless, standingless events occurs, they must be ready to solve the problem, provide the room, and send a nightcap of very very expensive Scotch.

Anyone want to help me draft the bill?

[Cross-posted at CREECblog.]

************

*  When we make hotel reservations, we can’t just go online and request the room we want.  We call, we have a long conversation about roll-in showers (“Are you sure?  You’ve seen the bathroom in that room?  Can you ask housekeeping to check?  I heard you roll your eyes — just go check please.”), we often call back at least once, and we send a confirming fax, which we then have on hand when we arrive at the hotel.  None of that matters if it’s 2:00 a.m. and there simply isn’t an accessible room available.

** Indeed, this hotel has made this precise argument with respect to violations known to exist in many of its hotels.  The court held that the plaintiff “must assert an intent to return to the particular place (or places) where the violations are alleged to be occurring.”  Scherr v. Marriott Int’l, Inc., 703 F.3d 1069, 1075 (7th Cir. 2013).  So there is no standing to make them fix the problem in other hotels unless this plaintiff is planning to go to each of them?  Which means, of course, that none of the other hotels in the chain will be fixed until other wheelchair-using hotel guests — in this case, 56 other guests at 56 different hotels — encounter the barriers and sue.  Or unless one guest has the foresight to bring a class action, adding to the length and complexity of the suit and the elapsed time until a discrimination-free stay can be ensured.

Image from the webpage of Fine Design Contractors of Somewhere, MN.