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Disability Access Litigation Booming:
How to Avoid Being a Target
Application of The ADA's Public Access Provision is Broad
One in five Americans has some physical or mental limitation that impedes usual function.
Not surprisingly, disability access litigation under Title III of the Americans with Disabilities Act
("ADA") has seen a dramatic increase in both the number of cases and their scope.
"Disability access" suits allege that a business or government entity fails to make
its facilities or programs equally available to disabled people. These lawsuits are brought
not only by disabled individuals, but also by disability advocacy attorneys and the Department
of Labor's Office of Civil Rights. Many of the suits seek class action status and attempt to
remedy a "problem" at a business-wide level, instead of just at the facility (or with
the program) that is involved in the individual plaintiff's suit.
The relief sought is equally broad: usually a request that the defendant comply with all the
ADA's accessibility requirements. There are the well-known requirements, such as accessible and
marked parking, ramps, entrances, hardware on doors and appliances, restrooms, phones and
drinking fountains, as well as equal access to goods, services and programs. In addition to
these general requirements, many industries now have specific, more technical regulations
that also mandate compliance.
Disability Access Suits are Lawyer Favorites
Because the ADA allows recovery of attorneys' fees, disability access litigation is
attractive to not only lawyers who specialize in the area, but also to advocacy groups.
Costs of defense are much like they are in other suits, but can escalate if the Department
of Labor also begins a parallel investigation, which sometimes happens when the plaintiff
files both a lawsuit and a DOL complaint. Moreover, the costs of compliance can be extremely
high because of the breadth of the relief sought.
Proactive Compliance Plans Lessen "Easy Target" Status
Businesses that implement disability access compliance plans minimize the chance of
becoming an easy target for disability access lawsuits. Moreover, in the event of a
Department of Labor investigation or advocacy group lawsuit, these plans allow you to
show good faith efforts that will often allow you to "buy time" to complete implementation
in a timely and cost-effective way. For example, under a phased plan, you may be able to
take tax deductions spread over several years for ADA compliance, instead of being required
under Court Order to complete all renovations within a single year.
Compliance plans usually follow this sequence:
- Assess existing facilities and programs for basic compliance (parking,
building access, restrooms, availability of handicapped assistance devices and people);
- Obtain bids for any needed renovations from one of the many well-qualified
contractors who specialize in ADA compliance, and establish contacts with
interpreters and assistive device leasing firms;
- Establish a time line for completion, accept bids and begin any needed
renovations;
- Assess compliance with regulations specific to your industry;
- Repeat steps (3) and (4) for any specific compliance issues.
Why go to this trouble? You may avoid disability access litigation entirely. If not,
you may be able to settle on favorable terms early in the process, and avoid class action
status or obtain a favorable class-wide settlement to prevent successful future litigation
about access issues. Early resolution is beneficial not only because it avoids litigation
costs, but also because the DOL is likely to discontinue any enforcement action when the
private litigant has agreed to drop his or her lawsuit. If a comprehensive plan is already
in place, there is no need for class action status because the defendant has already taken
appropriate steps to comply with the ADA. Finally, a compliance plan will assist you in
minimizing your opponent's attorneys' fee entitlement, by showing that there is no need
for litigation.
If you have disability access issues or want to discuss drafting a proactive compliance
plan, please contact any member of Strasburger's Labor & Employment Group.
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