Title III of The Americans with Disabilities Act (ADA) forbids businesses from discriminating against the disabled with respect to goods, services and facilities in public accommodations. An enormous percentage of American businesses is subject to its provisions, including stores, restaurants, hotels, theaters, transportation companies and others. The law requires businesses to comply with specific architectural guidelines, designed to provide equal access to disabled patrons.
If a business violates the ADA it can be sued by the Department of Justice, disability advocacy groups and individual disabled persons who have been discriminated against due to inadequate accommodations.
Recent court decisions have greatly increased the potential number of people that can sue, by holding that disabled persons who plan to utilize your business may potentially sue, even though they have not yet actually been denied access. These suits have been called “tester” lawsuits, meaning that disabled individuals can “test” businesses to try to find violations.
Last year the Wall Street Journal reported that disability lawsuits against small business were soaring. Texas is no exception, as reported in a investigative report by KXAN in Austin earlier this month.
The ADA is a hugely important statute, which has fundamentally made the country a better place to live. And private disability lawsuits have also helped, by helping identify violators and forcing them to comply. But like all other laws, there is a potential for abuse. Some state disabled-access laws allow the person that brings the suit to recover actual damages and minimum penalties from the violator. And private disability access lawsuits also usually allow the plaintiff’s attorney to recover his attorneys’ fees.
These factors, coupled with the rise of “tester” suits, could lead to a huge increase in private access suits, some valid, some frivolous. And businesses will need to be ready for them. Here are some ways to protect yourself, and make sure you’re ready if and when they come:
Make sure your business complies. The ADA has been around for decades, and businesses have had plenty of time to comply with its basic provisions. If you’re clearly out of compliance, tighten up your ship. You are violating the law, and you are costing yourself the potential business of a significant percentage of the public.
Hire a compliance consultant to audit your business. Sometimes violations aren’t obvious. Is your parking lot handicap striping the wrong shade of yellow? Are your bathroom mirrors mounted at the correct height? Violations seemingly as minor as this have served as the basis for compliance lawsuits. Locate a reputable consultant to come spend a couple of hours at your business to make sure you are in compliance.
Check your lease. Owners and renters can be sued for violations. Review your lease or building contract to determine whose responsibility it is to keep your building compliant. If someone other than you is responsible for compliance, make sure they are honoring their agreement.
Determine the age of your facility. The age of the building plays a role in the laws applicable and the potential defenses you have.
Determine if the person that is suing you is a “serial” filer. A very large percentage of accessibility suits are brought by a very few claimants. If you are sued, have your attorney determine the background and litigation history of the plaintiff. This may impact your rights.
If you have been sued, and learn that you are definitely out of compliance, talk to your attorney about the possibility of settling early. If you can work out an early and reasonable settlement, it will cut off the attorneys’ fees you will have to pay to go to trial. Remember, if you are sued, and lose, your business could be responsible to pay both your attorney and the plaintiffs’ attorney.
If you have been wrongfully sued, and know you are in compliance, argue and prove that the suit is frivolous. If you can convince the judge that the suit is groundless, you might be entitled to your attorneys’ fees.
Next month we’ll talk about the potential new wave of “Cyber Accessibility” suits against businesses, for websites that do not comply with the ADA.
Call us if you want to talk about this article, or if we can help you with your accessibility litigation.
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