The Americans with Disabilities Act, or “ADA” is best known for its prohibitions against disability discriminations in employment and the requirement that employers provide reasonable accommodations to disabled employees. Title III of this federal statute, however, requires businesses that serve the public to ensure that their facilities are accessible to the disabled. This, in turn, requires compliance with the “ADA Accessibility Guidelines for Business and Facilities” or ADAAG. The ADAAG provides detailed compliance requirements for facilities that range from the proper height of restroom mirrors to the maximum slope for parking lots and sidewalks. My experience has been that plaintiffs (particularly ones who file multiple lawsuits to “test” ADA compliance) often look for the most trivial violations because it is that much harder for a business to argue that the requested change would be too costly to make compliance practical.
The ADA allows private individuals and disability rights organizations to bring lawsuits in federal courts to enforce compliance with these architectural requirements. In the last decade, these lawsuits have been on the rise across the United States. They have become big business for ADA plaintiffs and their attorneys — and business is good. Many states, including California, Florida, Virginia, North Carolina, and Alabama, have seen the number of ADA lawsuits more than triple over the last ten years. Although no business is immune, the greatest increase in these claims has been among smaller shopping centers, retail stores, and restaurants. Very often, as many as twenty or thirty lawsuits will be brought in a single geographic area by the same plaintiff (and the same law firm). Each lawsuit will seek an injunction against the business and/or property owner that requires changes to the existing facilities, attorney’s fees, and potentially damages under various state laws.
Although it’s impossible for a business that serves the public to avoid the risk of ADA lawsuits completely, there are a number of steps that a business can take to minimize the risk of a lawsuit, or avoid liability when they arise:
- Have your property inspected by an ADA compliance expert. These are contractors and architects who specialize in reviewing facilities for compliance and making recommendations for changes. Often an inspection can be done for a few hundred dollars.
- Know the difference between ADA requirements and state and local building codes. Often the two do not completely overlap. For example, older structures are not exempted from the ADA as they are exempted in some cases from portions of building codes. That said, the ADA requires structures built prior to 1990 (and not remodeled) to comply with the ADAAG only to the extent “readily achievable” based on cost and the scope of work.
- Don’t ignore letters from plaintiff’s attorneys threatening ADA lawsuits. In some cases, a claim can be resolved with little cost if addressed prior to extensive litigation. At a minimum, addressing the claim early will enable you to begin preparing your defense and determining whether any insurance coverage may exist.
- Provide training to your employees and staff on how to address questions or concerns about disability access from customers. Addressing such issues up front can sometimes help to avoid a lawsuit (or at least make it harder for a plaintiff to claim injury).
- Ensure that any settlement addresses everything rather than provide an opportunity for a plaintiff to file multiple lawsuits on a piecemeal basis.
ADA public accommodations lawsuits are not going away. Businesses can, however, take steps to reduce the risk of legal exposure and minimize the impact to their bottom lines.