Defending Against ADA Lawsuits

October 1, 2018  |  Bradley Kletscher

Coauthored by Bradley A. Kletscher and Tyler W. Eubank

Generally. The Americans with Disabilities Act (commonly known as the “ADA”) is a federal law meant to protect persons with disabilities from discrimination. To that end, the ADA requires that businesses open to the public remove architectural barriers where such removal is readily achievable. The Department of Justice has produced the ADA Accessibility Guidelines, voluminous guidance on design specifications covering everything from the height of counters to the placement of braille signage on elevators. The ADA also allows persons affected by discrimination in the form of architectural barriers to seek injunctive relief from courts compelling business owners to make changes to their establishments.

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ADA Abuse. Enter ADA “drive-by” lawsuits. These lawsuits trace a predictable pattern: a disabled person, as defined by the ADA, goes to a business looking for non-compliance with ADA regulations. Due to the vast number of regulations, the business is often found not to be in compliance with ADA regulations; there may be too narrow of an accessibility strip next to a reserved parking space, too steep of a curb cut, too low signage for reserved spaces, too narrow of aisles, too high of a counter, or too high of a grab bar in the restroom. In one recent case, a court found that even frequent delivery of inventory which blocked aisles could state a claim for an ADA violation. The disabled person’s attorney then files suit against the business. The attorney offers to settle the lawsuit for a fairly low sum. While the ADA itself does not allow for compensatory damages, the business owner is incentivized to settle the suit rather than incur more in attorney’s fees defending the matter.
Defending Against an ADA Lawsuit. There are a few steps to consider taking if you are concerned about receiving an ADA lawsuit or have received an ADA lawsuit. First, before you receive an ADA lawsuit, be proactive in making sure your business is in compliance. There are ADA-compliance specialists that will assist you in determining whether your place of business is in compliance with the various regulations of the ADA. In the long run, getting out ahead of any issues will be cheaper than fixing the issues down the road and paying to settle or defending a suit. The issues may be relatively simple fixes such as changing the height of a handicapped parking sign or removing product displays.
Second, if you’ve already been served with a lawsuit, be proactive in making sure your business is ADA compliant. A court may be willing to dismiss the complaint where the business can establish that it is committed to ADA compliance. This means fixing any issues complained of as soon as possible and potentially creating a policy to remain in compliance.
Third, consider fighting back. The business model based on this practice relies on turning out lawsuits in bulk. By fighting back, you may show that your business just simply is not worth the time and energy. Standing your ground may include seeking assistance from a court in dismissing the complaint on various grounds.
If you are concerned regarding your exposure to an ADA lawsuit or have been served with an ADA lawsuit, contact an attorney at Barna, Guzy & Steffen to determine how best to proceed.