How Can ADA Litigation Impact Commercial Property Owners

More than two decades after the Americans with Disabilities Act (ADA) was signed into law, many facilities covered under this law are still being sued for their alleged failure to comply with the standards.

What is the ADA ?

The ADA is an important statute designed to give persons with disabilities an equal opportunity to access and enjoy places of public accommodation.

The ADA is a complaint-driven law. Most of the complaints are generated by individuals with disabilities, their families or disability-rights organizations. Private lawsuits can be and usually are filed directly in federal courts by those who believe their civil rights have been violated. Unlike other federal regulations, ADA does not have an “inspection” mechanism like the Occupational Safety and Health Administration and litigants are not required to notify the alleged offenders and provide an opportunity to cure the defect prior to filing suit. It relies on entities to comply with the requirements proactively. This can be problematic for business owners that either believe that they are in compliance or are not aware that they may not be compliant.

Problems can start with something as seemingly minor as lack of accessible parking (including access aisle and signage), to more serious issues of restrooms, sleeping rooms (hotels and residence halls in higher education), hospital patient rooms and bathing facilities.

Unfortunately, many businesses are not aware of the law which has resulted in many lawsuits.

Why is there so much litigation so long after the law took effect ?

Record numbers of lawsuits are being filed by a small group of plaintiffs and lawyers who have partnered together to file dozens, and in some cases hundreds, of ADA accessibility suits in federal courts. Although the ADA does not authorize an award of damages to a private plaintiff, it does allow them to recover their attorneys’ fees and costs, making these fee-driven lawsuits a profitable industry to pursue against shopping centers and other commercial properties.

These “serial filers”, as they have been called, are known to drive around from business to business solely for the purpose of identifying violations and bringing suit. In addition to the cost of achieving compliance with the law, defendant businesses are responsible for their own defense costs and the plaintiff’s costs. In many cases, the costs of litigation are far greater than the cost of the remediation ordered to be completed.

Also, in some cases, the initial filing of an ADA lawsuit has served to alert other litigants to potential violations of the law, resulting in the filing of multiple lawsuits against the same defendant for the same violations and creating an obligation to pay attorneys’ fees to multiple plaintiffs’ lawyers.

Unfortunately, under the current law, there is no mechanism in place to prevent such exploitation of the law.

How can you avoid being sued?

The only sure way to avoid ADA litigation is for owners and operators of commercial properties to conduct audits of their properties and correct any violations before falling victim to a lawsuit. Identifying and correcting violations before they become a problem costs far less than litigating the case and ultimately making these same corrections.

What do you do when you are sued?

In the event that an audit has not been conducted and corrections have not been made prior to being sued, the first step after being served with a lawsuit is to determine whether the allegations are valid. Firms that defend litigants in these cases usually advise their clients to hire a professional firm to conduct an ADA evaluation.  A thorough analysis of the allegations of the complaint and the professional findings is often helpful. If the issues can be addressed quickly, the cases can often be resolved without tremendous time, attention or legal costs. On the other hand, if the professional evaluation provides evidence that areas identified in the complaint are in compliance with ADA, the business owner has critical information that can be used to negotiate.

How can you minimize the risk of litigation?

Although, nothing can guarantee that a business will not be sued under the ADA, failure to take proactive steps will increase the likelihood of getting sued.

Some of these steps may include:

  1. If you have an ADA compliance plan, confirm that it has been followed;
  2. If an ADA plan has not been created,    it should be prepared. This would include performing an evaluation of the facility by engaging an outside professional with experience in ADA compliance.