The Americans with Disabilities Act of 1990 (the “Act” or “ADA”) was passed more than 25 years ago with the noble purpose of eliminating discrimination against individuals with disabilities in all facets of life. Title III of the Act specifically promotes equal access to public accommodations for individuals with disabilities. The term “public accommodations” is defined so broadly as to include just about any business that is open to the public. The purpose of the ADA is to make sure that individuals with disabilities feel as welcome in our businesses as those without disabilities. To facilitate this, the ADA has created Standards for Accessible Design which apply to all areas of the business premises; from entry ways and restrooms to water fountains and parking lots.
The ADA requires that all new construction comply with the Standards for Accessible Design. But the ADA can also apply to older buildings if compliance with the ADA would be “readily achievable” – meaning that compliance would not be overly expensive or unduly burdensome. However, what is “readily achievable” depends on the unique characteristic of each business.
The Act allows individuals who have been discriminated against to file a lawsuit to require compliance, seek monetary damages and to recover their attorney’s fees. Recently, there has been a spike in litigation in Arizona with respect to the accessibility provisions of the ADA. In fact, over the past year and a half, hundreds of ADA accessibility lawsuits have been filed against Arizona businesses. But all of these cases have been filed by only a small handful of Plaintiffs who often use the same law firms.
Many of these lawsuits have been filed against Arizona businesses for parking lot non-compliance issues. For example, the ADA requires that all business parking lots 1) contain the correct number of “accessible” parking spaces; 2) include van accessible parking; and 3) have signs with the international symbol for accessibility mounted in front of parking spaces.
Business owners have become frustrated that one or two disabled individuals, in connection with their attorneys, seem to be patrolling the state searching for businesses with any type of ADA violation. These individuals then file lawsuits in federal court before notifying the businesses of the violations. So, even if the businesses immediately agree to make the corrections, they must also pay the Plaintiffs’ attorney’s fees, which are often $5,000 or more per lawsuit, to get the cases dismissed.
This onslaught of litigation has had a polarizing effect on Arizona residents. Some believe that these repeat plaintiffs and their attorneys are using the Act to extort money from Arizona businesses for small and insignificant ADA violations. The other side says that the ADA has been around for over 25 years and if businesses are still not ADA compliant it is their own fault and litigation is the only reliable method to bring about the purposes of the Act, which is to make disabled individuals feel welcome in our businesses.
But regardless of which side of the debate you are on, every business should retain a qualified contractor or architect to conduct an ADA compliance analysis of the business premises and make any changes or corrections based on the issues identified. These lawsuits often target small businesses because they are less likely to proactively seek professional help to become ADA compliant and they are also more likely to settle quickly because they often do not have the resources to fund prolonged litigation.
However, ADA compliance should be about more than just risk management and staying out of litigation. Business owners should view ADA compliance as part of their efforts to provide exceptional customer service. It is estimated that there are 24.1 million people in the United States with a severe disability that requires the long-term use of assistive devices such as wheelchairs, crutches, and walkers and all of these people are consumers. Virtually every business in existence has customer service as one of its top priorities. And when a business has plenty of accessible parking, prominent signage and a wide path to the business entrance, it sends a strong message that individuals with disabilities are wanted and are valued as customers.