EEOC statistics routinely place Title I disability
claims as a top reason that employees file a Charge
of Discrimination, but other rising litigious stars
emerging from the ADA include Title II (
government accessibility) and Title III (places of public
accessibility), which aim to provide equal access to
all people with disabilities – not just employees – in
everyday business activities. In fact, accessibility
lawsuits in 2014 rose an estimated 40% from 2013
and were on pace to reach more than 3,800 cases
filed in federal court, according to the most recent
Your building could easily become the target of
one of these cases. Prepare proactively and guard
against accessibility litigation by understanding the
basis of these suits and the common misconceptions
that make businesses vulnerable.
Why Are Accessibility Claims So Attractive?
Unlike Title I, ADA public accommodation
plaintiffs do not have to go through the EEOC’s pre-lawsuit administrative process. Instead, they can
proceed directly to federal court. The plaintiff’s bar
is attracted to accessibility lawsuits because a) the
ADA’s public accommodation requirements do not
require proof of intent to discriminate; b) the access guidelines are highly detailed and liability can
be based on a relatively minor technical violation;
and c) like many federal civil rights laws, a prevailing plaintiff is generally entitled to attorney’s fees,
reimbursement of costs, and other expenses, even
though the plaintiff is only allowed to seek injunctive (non-monetary) relief.
In theory, a plaintiff will file an ADA accessibility
lawsuit after a business refuses the patron access to
goods and services by way of its inaccessible design
or operations. If disabled plaintiffs are on a crusade
or are being incentivized otherwise, the concoction
of attraction has created a windfall of recent litigation for businesses.
Plaintiffs and their attorneys have taken advantage of many misconceptions business owners have
when it comes to ADA compliance by refusing to
give businesses a chance to address access issues
before filing complaints. Oversights cost companies
thousands of dollars in the form of renovations, loss
of productivity, and attorneys’ fees. If any of these
common accessibility myths ring true, it’s time to
take a second look at your building to make sure it
abides by the letter of the law.
1 ADA accessibility requirements are a one- time building code requirement.
The ADA is a civil rights law, not a building code.
ADA accessibility is a complaint-driven, continual,
and ever-changing law that operates in part under
a document called ADA Standards for Accessible
Design. The Department of Justice has released two
versions of this document: 1991 and 2010.
ADA accessibility applies to all publically
accessible buildings regardless of the year they
were built in order to attain “readily achievable
barrier removal” for all disabled individuals.
Typically, building code officials review construction plans and inspect facilities several times before
work is completed in order to comply with state
and local codes. However, there is no such inspector for ADA accessibility, so it’s up to you to make
sure your building is compliant.
2 Landlords are liable for compliance, but tenants are not.
Both the landlord and the tenant share the legal
responsibility for complying with ADA accessibility,
including removing barriers or providing other
accessibility devices such as “auxiliary aids and
services.” These include interpreters, written
materials, assistive listening devices, or computer-aided services. The landlord and tenant may decide
by lease who is supposed to make the changes or
provide the services, but both remain legally
responsible to the patron or employee.
3Older or historic buildings are exempt from the requirements.
There is no “grandfathered in” concept under
the ADA. The law does hold facilities built or
renovated after 1990 or 2010 to a more stringent
standard of accessible design, but all publically
accessible places must take reasonable steps to
improve access to patrons.
This mandate includes the obligation to remove
barriers from existing buildings whenever it is
“readily achievable” to do so. “Readily achievable”
accessibility is a legal term determined by a reasonableness test for when a business can provide access
to the products or services it offers “without much
difficulty or expense.”
4A business that settles an ADA lawsuit cannot be sued again.
The mere existence of “drive-by” lawsuits that
target and re-target businesses (often hoteliers,
retailers, and restaurant owners) for accessibility
issues is evidence enough that this statement is
In a drive-by incident, a disabled patron visits a
business for the sole purpose of finding potential
violations with parking, wheelchair ramps, doorway widths, or bathroom mirrors or hand dryers
that need to be moved an inch lower. If a violation
is discovered, the visitor – who is likely not even a
real patron – will file a federal lawsuit against the
company to ask for costly modifications and, of
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