It is certainly good to know what to do if your business is served with a lawsuit under the ADA. It is even better to know what steps you can take to help avoid your business becoming a target for these lawsuits in the first place. While there is no way to completely avoid the risk of an ADA lawsuit, taking a few simple (and in many cases low cost) steps can help reduce the risk of appearing as “low hanging fruit” for plaintiffs, plaintiff’s advocacy organizations, and the Department of Justice.
Tip #1: Curb Appeal
We’ve all heard stories of potential plaintiffs simply driving down a major road until they find a likely target. In some cases, the decision may be made before the individual even sets foot on the premises. Avoiding a “lack of compliance” appearance can help your business avoid being the one they choose. This means ensuring that disabled parking spots have clear (not faded) lines, parking signs are erect and not crooked or missing, and debris or merchandise does not block sidewalks and entryways. Old or faded signs and markers signal that your business may not be up to date with its ADA compliance.
Tip #2: Training Matters
Training your employees on how to respond to requests for accommodations or questions about ADA compliance can also help your business avoid lawsuits. Properly trained employees can serve as your first line of defense against claims that your business “failed to accommodate” or allowed violations to exist. Conversely, employees without proper training can exacerbate problems and make ADA lawsuits more likely and harder to defend.
Tip #3: Get a Checkup
One of the most challenging aspects of ADA compliance is that facilities and environmental conditions are dynamic and can change significantly over time. A wheelchair ramp that was appropriately sloped when installed can later become a violation due to settling and wear-and-tear. Engaging an expert in ADA compliance to inspect your business on an annual basis can be a cost effective way to avoid this problem. Inspections can also provide evidence of a good-faith effort at compliance should a lawsuit arise.
Tip #4 Listen to your Neighbors
As regular readers of this blog know, ADA suits often come in “bunches” with several being filed at a single time against businesses in the same geographic location. These suits also often allege similar types of violations. If you hear that neighboring businesses have been served with lawsuits, or threats of lawsuits, it may be time to determine whether your business may be susceptible to similar allegations and claims.
Tip #5 Consider the ADA when Deciding to Renovate or Remodel
Older (pre-1993) businesses generally must only comply with the ADA to the extent that compliance is “readily achievable” (i.e. not significantly costly for the business). A business ceases to fall into this category, however, if it undergoes substantial renovations or remodeling (such as rebuilding after a fire, undertaking major remodeling, or constructing an addition). In these cases, a business often ceases to qualify as an older facility and may have to fully comply with the ADA as if it were new construction. When making significant structural changes, it is always a good idea to know whether the ADA will add additional compliance costs and requirements.
Unfortunately, there is no foolproof solution to avoid ADA lawsuits. Some businesses must defend such lawsuits even if they are in full compliance. Taking these practical steps and seeking out appropriate advice can, however, help significantly reduce your risk of litigation.