How to Stop Accessibility Lawsuits Before They Stop You
What Small Businesses Should Know About the ADA
When was the last time you measured the slope of the curb ramp leading from your parking lot to your facility? Do you have the International Symbol of Accessibility on your storefront and bathroom door? Does it include Braille? Have you recently measured the access aisles of your parking spaces?
If you have not checked your facility for compliance with the Americans with Disabilities Act accessibility guidelines, essentially a Congressional-imposed building code, a aEURoeprofessionalaEUR? plaintiff may do it for you. While prevalent on the coasts for many years (one plaintiff in California filed over 400 lawsuits netting more than $800,000) accessibility lawsuits are growing in popularity throughout the Midwest. During the past 12 months, one Nebraska plaintiff alone has filed more than 11 lawsuits. Prevention and an early, aggressive defense in the event of a lawsuit will decrease and may even eliminate the risk that your business will be the next bulls-eye.
ADA Accessibility Guidelines
Congress enacted the ADA in 1990. Title III of the ADA sets standards for access to public accommodations and commercial facilities for people with disabilities. It prohibits discrimination based on disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to) or operates a place of public accommodation.
Title III contains two separate standards regulating building accessibility. The first pertains to facilities existing before January 26, 1993, and requires removal of architectural barriers where removal is aEURoereadily achievableaEUR? and able to be carried out without much difficulty or expense. The second pertains to facilities constructed or altered after January 26, 1993, and requires that facilities be readily accessible and comply with the accessibility guidelines.
Grandfathering
Many businesses are under the mistaken impression that if they owned or leased their building since before January 26, 1993, and have not made substantial physical changes to their premises, they are aEURoegrandfatheredaEUR? under Title III, i.e., they have no obligation to make their business ADA accessible.
The language of the ADA, however, applies to aEURoeexistingaEUR? public businesses and requires that they remove structural barriers aEURoewhere such removal is readily achievable.aEUR? Even when not readily achievable, the business must provide access aEURoethrough alternative methods if such methods are readily achievable.aEUR?
What Can a Plaintiff Recover?
Under the ADA, a plaintiff alleging a business has failed to make the physical changes necessary to comply with the ADA can seek only injunctive, or non-monetary, relief. Plaintiffs typically request an injunction against the business to make it accessible to persons with disabilities. A few plaintiffs would also request a temporary injunction or restraining order to shut the doors of a business pending ADA compliance. Normally, this type of request is simply included for shock value.
In addition to injunctive (nonmonetary) relief, the ADA allows an award of attorneyaEUR(TM)s fees to successful plaintiffs. AttorneyaEUR(TM)s fees, costs, expert fees, and litigation expenses can quickly amount to tens of thousands of dollars. Some states, such as California and Washington, have statutes prescribing a formula for damages that apply to each offense. Many states even set a minimum award, such as $4,000 in California.
Defense Guide
With some variation, the blueprint for disability accessibility lawsuits is similar. First, an out-of-state law firm finds a disabled individual in a city or state. In Nebraska, the plaintiff was Ms. Wheelchair Nebraska 2008, Lorinda Brown. The law firm then directs the plaintiff aEURoetesteraEUR? to visit various retail establishments, shopping malls and restaurants. During the visit, the tester takes measurements and makes observations about the parking spaces, the curb ramps, the interior and restrooms. Often, these are done while accompanied by an expert or a trained paralegal from the out-of-state law firm.
Once the visit is completed, the law firm inputs the data into a template lawsuit that has been used and refined throughout tens, if not hundreds, of prior court appearances. The firm then retains a local attorney to file the lawsuit on its behalf in federal or state court, normally promising a cut of the fees for minimal work. The lawsuit typically alleges the business is in violation of the ADA and is discriminatory against disabled individuals. The lawsuit asks that the plaintiff be awarded attorneyaEUR(TM)s fees, costs, expert fees, and litigation expenses and may ask that the business be shut down pending compliance.
The first step for a defendant after being served (or before, if your attorney routinely monitors court filings) is to review the lawsuit for alleged ADA accessibility violations. Each allegation is typically described in detail, with catch-all language to allow for other violations to be added later. A site visitation should be conducted to determine precisely the alleged accessibility barriers. Determine which alleged violations are your responsibilities, which are the responsibilities of the landlord, and which may be that of a third party (i.e., other store owner). It is advisable to tender the lawsuit to the landlord and insurance carrier.
Next, have an architect or a code-consultation firm perform an ADA-accessibility study on each alleged violation. Following the report, immediately fix the accessibility barriers alleged where compliance is readily achievable. Common claims involve signage, doorknobs, and missing handrails, which are easy to fix and can be done at a low or no cost. Immediately fixing the alleged barriers is not only the right thing to do, but it causes the plaintiffaEUR(TM)s case to become moot. A moot case early in the lawsuit may yield immediate results, including the likelihood of an early, low-money settlement, and, potentially, an early dismissal, saving thousands in defense and settlement costs. In fact, courts are growing impatient with plaintiffs who insist on pursuing a case after the alleged violations have been fixed.
After fixing the alleged violations, have the architect or code-consultant prepare a follow-up report showing compliance, highlighting each allegation in the lawsuit. The report should include photographic proof.
After successfully removing the barriers, a low or no money settlement will likely follow. Make sure that any settlement agreement releases all claims and contains a confidentiality clause.
Prevention
Often, the first time a landlord or business owner learns it is not ADA-compliant is when it is served with the lawsuit. Business owners agree that if they were notified of noncompliant conditions before a lawsuit, they would cure the defects as soon as possible. That, however, would deprive the attorneys and plaintiffs of much sought-after fees, which seems to be the actual goal of accessibility lawsuits (although the attorneys and plaintiffs would tell you differently).
If you have not been sued, take the opportunity to hire a code-consultation firm or architect specializing in ADA accessibility to visit your facility and conduct a review. Many fixes can be low or no cost aEUR" sometimes it is as easy as moving a few tables or adjusting the height of a sign. These fixes will make your facility more accessible to disabled individuals, deter professional plaintiffs, and save potentially tens of thousands of dollars in liability and defense costs.
In addition to lowering barriers to your facility and encouraging access, pre-lawsuit abatement or immediate post-lawsuit elimination of accessibility barriers may prevent a litigation windfall at the expense of your business.
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