Dec 6, 2016

ADA ‘Drive By’ Lawsuits On The Rise

Accessibility Sign

The number of ADA accessibility lawsuits being filed is increasing across the nation.  States like Georgia, Arizona, California, Florida, New York and Texas are seeing alarming increases in the number of federal lawsuits alleging violations under Title III of the Americans with Disabilities Act (“ADA”).  Property owners in Georgia have been hit particularly hard with such lawsuits.  One Atlanta law firm that regularly represents disabled plaintiffs in such cases, and markets itself as a disability protection law firm, has filed well over 400 lawsuits in federal court in Atlanta against local business. The steep rise in litigation has businesses on edge. As a result, business owners, executives, and managers are advised to take a hard look at their facilities and website(s) with a focus on ADA compliance.

Title III of the ADA requires places of “public accommodation” to provide equal access to their goods and services to individuals with disabilities.  The term “public accommodation” is broadly defined and applies to traditional brick and mortar facilities (e.g., restaurants and bars, shopping centers, inns and hotels, museums, schools) as well as websites and electronic applications.  Importantly, places of public accommodation must make reasonable modifications to their policies, practices, and procedures so that their goods and services are available to people with disabilities.  This includes modifying programs or practices (unless the modification would fundamentally alter the goods or services), making available auxiliary aids and services, and the removal of architectural barriers.

Most “Drive By” lawsuits involve individuals, attorneys, or their so-called “expert witness” driving by a place of business to determine whether there exist any architectural barriers for disabled individuals.  Specifically, the ADA requires existing facilities, those built prior to January 26, 1993, to remove physical and communications barriers where “readily achievable,” defined as “easily accomplishable and able to be carried out without much difficulty or expense.”  Failure to remove barriers where “readily achievable” constitutes discrimination.  Commonly, the removal of barriers includes installing ramps, having accessible parking spaces, widening doorways, and installing grab bars in lavatories.  However, more extreme modifications may be necessary where “readily achievable.”  Courts look to such factors as (1) the nature and cost of removing the barrier; (2) the overall financial resources of the facility; (3) the overall financial resources of the covered entity; and (4) the type of operation(s) the covered entity engages in.  The analysis seeks to balance the benefit of the barrier’s removal and the harm (e.g. cost) to the business.

The ADA does not contain a “grandfather clause” for older buildings.  Instead, existing facilities of public accommodation, those built prior to January 26, 1993, must retrofit their facilities and remove readily achievable barriers.

Moreover, all facilities constructed for first occupancy after January 26, 1993, must be accessible to people with disabilities to the extent it is not structurally impracticable.  In 2010, the Department of Justice published revised regulations for new construction or alterations beginning after March 15, 2012.  The 2010 revised standards can be found here.

Common ADA standards for brick and mortar facilities include one wheelchair accessible space for every 25 spaces, wheelchair accessible entrances and exits, aisle ways and pathways at least 36 inches wide, and wheel chair accessible restrooms.  The ADA’s public accommodations standards are extremely technical and must be rigidly followed.  For example, a 59 inch tall handicap parking sign, as opposed to the 60 inch minimum, may result in a liability for a business.

In addition to meeting the specific regulations regarding physical structure ADA compliance, business owners must ensure their websites are also accessible to persons with disabilities.  Although the Department of Justice has not yet issued regulations detailing specific benchmarks for determining whether a website is acceptable, it has signaled both its regulatory intent to enforce the ADA’s broad mandate that every facility be accessible to those appearing online.  Furthermore, in its latest notice concerning the subject, it has signaled the standard of accessibility that it intends to adopt in its regulations, the Web Content Accessibility Guidelines, version 2.0 (WCAG 2.0).  In order to be accessible, websites must meet a minimum standard in twelve distinct measurements of accessibility, ranging from being able to be perceived through assistive technology to the safety of a website to persons susceptible to certain harms from visual stimulus.  While a business owner may be able to measure a physical facility’s compliance with ADA regulations, it is unlikely that a website’s accessibility can be similarly measured without engaging professionals to address web accessibility issues.  Although the Department of Justice has not officially adopted the WCAG 2.0 standard, plaintiffs have begun bringing suits against business owners claiming that websites do not meet this standard.

And it is not only Title III entities which must be concerned with the accessibility of their website, but the operator of any website/web services.  The Department of Justice has indicated that it considers the Internet as a whole to be a place of public accommodation and, therefore, subject to Title III of the ADA whether the company operating the website has any physical locations of public accommodation or not.

Unlike other civil rights laws, Title III of the ADA does not have a pre-suit notice requirement.  Litigants are not required to notify the business or facility allegedly violating Title III of the ADA.   Instead, as the name so aptly describes, litigants can merely drive by the facility, recognize an alleged violation, and file a lawsuit that same day.

While there are no damages available to claimants under Title III of the ADA, businesses could be subject to the expense and embarrassment of having to modify non-compliant building(s) and/or website(s).  Further, injunctive relief, court costs and attorney’s fees are all appropriate remedies, which provides ample reason for Plaintiffs’ attorneys to fire off these “Drive By” lawsuits one after another.

Business owners, executives, and managers of facilities of public accommodation are encouraged to consult with an attorney to determine whether their facilities are compliant with Title III of the ADA.   New buildings, those built after January 26, 1993, should ensure that construction is compliant with the applicable original or revised building standards.  Public accommodation facilities existing prior to January 26, 1993, should ensure they are doing as much as is practicable to remove “readily achievable” barriers.  Additionally, website operators should make sure that they are adequately addressing the accessibility of their websites through their contracts with service providers and partnering with vendors that can help ensure that the website meets the applicable standards.  Overall, business owners need to remain informed and conduct diligent reviews of their facilities of public accommodation to remove threats of litigation that exist because of the very technical nature of Title III of the ADA.

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