“How a society treats its disabled is the true measure of a civilization.”
Americans with Disabilities Act (ADA) lawsuits are sweeping the nation and hitting local businesses in the wallet. In Arizona, hundreds of lawsuits have been filed this year alone alleging businesses failed to provide disabled people with access to their facilities.
This article provides businesses with a plan to avoid being on the wrong end of an unwinnable ADA lawsuit.
WHAT IS THE ADA AND HOW DID IT COME TO BE?
On July 26, 1990, President George H.W. Bush signed into law the Americans with Disabilities Act (ADA), a comprehensive civil rights law prohibiting discrimination on the basis of disability. The ADA broadly protects the rights of individuals with disabilities in employment, access government services, places of public accommodation, transportation, and other important areas of American life.
The ADA provides that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, 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 of the ADA prohibits discrimination on the basis of disability in places of public accommodation. It covers businesses that are generally open to the public and fall into one of 12 categories listed in the ADA, such as restaurants, bars, movie theaters, schools, day care facilities, recreation facilities, and doctors’ offices. The law requires newly constructed or altered places of public accommodation, as well as commercial facilities — privately owned, nonresidential facilities such as factories, warehouses, or office buildings — to comply with ADA standards.
On March 28, 2014, the Department of Justice (DOJ) issued a Final Rule regarding DOJ civil monetary penalties: the maximum civil penalty for a first violation is $75,000; for a subsequent violation the maximum is $150,000.
THE UNWINNABLE LAWSUIT?
The DOJ has been aggressive in enforcing the ADA. However, government enforcement pales in comparison to the number of private lawsuits brought by “serial” plaintiffs — those who file hundreds of lawsuits using the same lawyers.
Most lawsuits are defensible. ADA lawsuits, however, are a special breed. Because the law is so weighted in favor of people with disabilities and provides for an award of attorneys’ fees to prevailing plaintiffs, and given that many businesses have at least one or more areas of non-compliance, aggressively defending an ADA lawsuit is oftentimes foolhardy. In very little time, the “tail can start wagging the dog”, meaning attorneys’ fees can mount rapidly, potentially consuming a business in a no-win quagmire.
Many businesses and individuals react emotionally when they receive an ADA lawsuit. Rather than responding viscerally and defensively to the lawsuit, the better approach is to calmly evaluate how to resolve the matter well short of a trial.
First, contact legal counsel with ADA experience. Counsel without such a background have a steep learning curve, can underestimate how quickly a case can get out of hand, and will be hard-pressed to know the best path towards resolution. Work with experienced counsel to develop a strategy to end the lawsuit and achieve ADA compliance with a minimum expenditure of money and time.
Next, decide whether your business needs to hire a professional, such as an architect or consultant, to evaluate ADA compliance. ADA requirements can be confusing. A qualified professional can quickly and efficiently identify areas of non-compliance in a business’s parking lot, sidewalk, and entrance pathway, and, once inside, access to various areas (e.g. tables, seating, bathrooms, counters, bars, etc.).
Unfortunately, there are some plaintiffs and plaintiff’s lawyers who will overreach. In such instances, when settlement is impossible or impractical, it is critical to hire experienced counsel. A small number of cases may need to be defended aggressively; the key is knowing when to do so, and then developing a strategy with a clearly defined objective and end-game.
GO WITH A PRO: ACHIEVE COMPLIANCE AND SLEEP WELL AT NIGHT
Bourque Law Firm recently teamed with Life Quest Training & Consulting to help a business respond to an ADA lawsuit and achieve ADA compliance.
Life Quest’s owner, Nanette Odell, Ed.D., with over 30 years’ experience in the disability field, notes that ensuring compliance requires the following:
- A Commitment to get it done over a period of time and with planned financial resources. Keep in mind that there are tax deductions and credits that can help.
- An Assessment of your current level of compliance. This can be a daunting task for a layperson as even one single use restroom can have 80 items to assess.
- An organized Transition Plan to get from where you are to where you need to be. An expert in the ADA can help lay out a plan to achieve compliance over a period of time by prioritizing what needs to be done and laying it out in simple terms.
With a proper attitude towards those struggling with disabilities, ADA compliance becomes a no-brainer. For perspective, speak to anyone who simply desires to visit a store or enter a business but is shut-out by an easily removable barrier.
ADA compliance is also good for business: As noted by Dr. Odell, “people with disabilities make up the fastest growing minority population in the world. According to the U.S. Dept. of Justice, by the year 2030, 71.5 million Baby Boomers will be over the age of 65 and demanding products, services, and environments that address their age-related physical changes. Accessibility attracts not only people with disabilities but also their families and friends. This expands the potential market exponentially!
This group has $175 billion in discretionary spending power (U.S. Dept. of Labor) so ensuring compliance is not only the law and the right thing to do but it also makes good business sense.”
NOTE: This article addresses Title III of the ADA. For information about Title I, which covers businesses with 15 or more employees, read here and here.
Bourque Law Firm, P.C. assists businesses and individuals on ADA matters and otherwise provides a wide array of services focused on helping companies, human resource professionals, and individuals succeed. Art Bourque is an AV rated attorney who has been practicing employment law and commercial litigation in Arizona for 25 years.