plan of action to make accessibility updates at some
point in the near future. Judges will take into consideration a business’s good faith efforts and plan to
remove barriers and provide access to patrons.
Finally, if you receive a demand letter or complaint, do not immediately cave and spend substantial sums on major renovations. The ADA allows
“safe harbor” provisions to limit your obligation to
modify existing structures. In the best case scenario,
the plaintiff is hoping to cash in on the probability
that you still believe these ADA accessibility myths. B
Hunter Kitchens is a defense litigation attorney
and licensed patent attorney. Andrew S. Naylor is
the chair of the Labor and Employment practice
for Waller Lansden Dortch & Davis, LLP, which
provides legal counsel in Americans with Disabilities Act matters throughout the United States. For
additional information, please contact Naylor at
(615) 850-8578 or email@example.com.
course, attorney’s fees.
To cut down on this practice,
California enacted SB 1186 in
2012 to help reduce the likelihood that a plaintiff could file
multiple claims by making
numerous visits to the same
business. As a practical tip, if
your business has been sued
for alleged ADA accessibility
violations, attempt to negotiate a
contract for future pre-litigation
notices in order to limit or prevent further litigation.
5ADA requirements only cover wheelchair users.
ADA accessibility is much
broader than physically modifying new or existing structures to
accommodate mobility aids. The
law also applies to modifications
of company policies, practices,
or procedures to allow individuals with all types of disabilities
access to any goods and services
offered to the general public.
Recent modification examples
include allowing service animals
into doctor’s offices, mandating
that waiters read menu items to
seeing-impaired patrons, requiring store clerks to assist with
highly placed items, and providing screen readers and refresh-able Braille touch displays to a
The concept of who is “
disabled” was greatly expanded
by the 2009 amendments to
the ADA, but has always been
broader than wheelchair users.
Create Your Game Plan
To help prevent litigation, your
best defense is always a proactive
offense. The first step is to simply
read and educate yourself on the
2010 version of ADA Standards
for Accessible Design, especially
provisions concerning the most
frequent complaints: parking lots,
building entrances, ramps, bathrooms, and unreachable objects.
Second, designate an ADA co-ordinator educated on the standards who routinely inspects the
property and has a documented
FIRST STEP IS
TO SIMPLY READ
WHO IS DISABLED?
The following groups are protected by the ADA, according to the Department of Justice’s technical assistance manuals at ADA.gov.
■ Someone with a “physical or mental impairment
that substantially limits one or more major life
activity,” including walking, talking, seeing, hearing,
breathing, reasoning, or taking care of oneself. Major life activities also include bodily functions, such
as cell growth or the proper functioning of immune,
nervous, respiratory, or other body systems.
■ People with a record of impairment that previously
limited life activities, such as a history of treatment
for cancer or mental illness that is now in remission.
■ Anyone who is regarded as having a disability
even if their life activities are not substantially limited, such as a person with adequately controlled
diabetes or a facial disfigurement. This category
also protects people who are not impaired but are
treated as if they are – for example, someone who
is refused entry to a public accommodation based
on untrue rumors that he or she is HIV-positive.
The law also protects able-bodied people against
discrimination based on their known relationship
or association with people who have disabilities.
The Department of Justice presents an example of a
day care center that refuses to admit a child whose
sibling is HIV-positive, even though the child seeking
admission does not have a disability.