Business Owners: Options for Addressing ADA Lawsuits
Drive-by lawsuits, apart from all the legal jargon and nuances, are the result of a person with a disability going into a public accommodation (typically a restaurant, but could be any private business or Title III entity) and then filing a lawsuit against the owners of the business, and or property owner (due to discrimination as it relates to a physical barrier preventing them from accessing that business’ goods and services). In these cases the word “inaccessible” often means some element of the physical structure does not align with ADA (Americans with Disabilities Act) Design Standards. To file one of these lawsuits, the individual must be a qualified individual with a disability, or be the guardian of a person with a disability, and the individual is required to have been a patron of the business.
The numbers of these lawsuits are staggering. In the first four months of 2017, ADA lawsuits had increased by 18 percent over the same period last year. That brings totals to 2,629 federal ADA lawsuits filed this year, with 412 more lawsuits filed than the same period in 2016.
With most of the drive-by lawsuits in the news, a person with a disability will bring forward a lawsuit (or a lawyer will), and say they will take the business owners to court unless the business pays them a cash settlement. These settlements are often thousands of dollars, and business owners usually say they were never contacted about their ADA violation before they received the lawsuit. These lawsuits often go together with talk of fraud on the part of the person and/or lawyer suing the business.
This topic quickly becomes complicated, especially for the business owners who get slapped with lawsuits. Many do not know the complexities of the ADA, and some say they were wholly unaware of its existence, or the requirement for them to follow it. But as 2017 marks the 27th birthday of the passage of the ADA, and some ADA advocates say that businesses had almost three decades to address these issues and if a lawsuit must be the tipping point to finally bring the business into compliance, so be it. Business owners often say that if an actual customer with a disability had contacted them about a grievance, they would have been happy to fix it.
Oftentimes, the allegations in the lawsuits seem insignificant, like a soap dispenser being too high by one or two inches. A small business owner now faces some tough decisions- bring their case to court and pay possibly thousands of dollars in legal fees, or pay thousands of dollars out of court and hope they do not get sued again. The drive-by lawsuits brought against business owners rarely, if ever, require the business owner to meet compliance as part of the settlement, so oftentimes a business owner ultimately does not fix the problems, particularly when the issues cost more money to fix.
Most of the time this seems like a lose-lose situation for the business owner, and ultimately, for the disability community as well. People with disabilities and their lawyers bringing these suits are perceived as civil rights opportunists, trying to find any reason to sue a business. Simply because an issue is small, that does not mean the business is not at fault. It is entirely possible a person with a disability did indeed feel discriminated against because of an architectural barrier. If a wheelchair user cannot reach a toilet paper dispenser, that is a legitimate concern that needs to be fixed immediately. If a parking lot does not have spots marked reserved for people with disabilities, or if the accessible spaces are the wrong dimensions, someone needing the spot will be unable to use it. These are only two examples of the many ways a private business may not be ADA compliant.
As it turns out, business owners do have an additional option that more and more are finding, including working with an ADA expert who understands all the complexities of the law, like Meeting the Challenge (MTC). MTC ensures that no detail is missed regarding ADA Compliance. We’ve seen an exponential increase in work with these type of clients who have received drive-by lawsuits over the last year. Once Meeting the Challenge is on site, we can determine if the lawsuit has any merit, and we’ll review every item on the list of allegations. Sometimes we’ll find that the lawsuit’s list of specific allegations are indeed non compliant, and sometimes we’ll find that the allegation is incorrect, at which point we’re also able to guide the business through how to best fix the problem. Either way, once a third party like Meeting the Challenge is involved, new levels of credibility are built and a case can be made much stronger.
The ADA was passed as a civil rights law (one with architectural implications), and rightfully so. People with disabilities finally had government support requiring that people with disabilities not be excluded from the public sphere. The implications of the ADA are far reaching and should not be ignored or viewed with disdain, which can be an unfortunate side effect of drive-by lawsuits.
If you are given a drive-by lawsuit, do not panic, and do not pay the people suing you! Instead, call MTC and find out what your options are, and learn exactly what you can do.