By Catharine Morisset & John Mavros, Fisher & Phillips LLP
Across the country, plaintiffs’ attorneys are targeting restaurants, bars, and retail establishments to bring claims for technical violations of Title III of the Americans with Disabilities Act (ADA). It is not unusual for a single individual to file 200 to 300 ADA lawsuits in a relatively short period of time. Yet often this individual was never a patron of the targeted establishments. Instead, a disabled individual, or even just an attorney, can simply drive by for the express purpose of finding an ADA violation in order to file suit. These actions, known as “drive-by” lawsuits, are on the rise and are costing the hospitality industry millions of dollars per year. The ADA has a commendable purpose, yet this practice can feel more like abuse just for monetary gain. This article sets out the anatomy of a Title III case to help inform hospitality businesses and encourage proactive measures to defeat these claims.
The ADA’s Public Accommodation Requirements
Title III of the ADA requires that places of public accommodation such as hotels, entertainment centers, restaurants, and bars are accessible to guests with disabilities, including removing all “physical barriers” to disabled individuals whenever it is “readily achievable” to do so. Whether or not an unlawful physical barrier is determined to exist is governed by Title III’s interpretive regulations. The federal Access Board also periodically updates its compliance guidelines, (http://www.access-board.gov/ada) and all public accommodations (businesses and non-profits alike) are expected to review and ensure their facilities are compliant. The accessibility guidelines include precise requirements for disabled parking, wheelchair ramps, doorway width, parking lots, entrances, elevators, pathways, seating, bathrooms, and more.
It Usually Starts With a Demand Letter
Although the ADA has no notice requirements, in Washington and most other states, the targeted business typically first receives a demand letter drafted by an attorney on behalf of a claimant who has never even visited the establishment, but who instead has driven by spotted a “physical barrier.” Barriers visible from the street could be a stepped entrance without an adjacent ramp, narrow doorframe, windscreen that does not provide a sufficient turning radius for wheel chairs, improperly striped parking spaces, among dozens of other possibilities.
At this stage, many litigants seek a quick settlement for a few thousand dollars, and perhaps some modifications to the property. Yet even though a technical violation may exist, it may not be appropriate to settle the demand. For example, some technical violations may not be readily achievable. “Readily achievable” is defined to mean “easily accomplishable and able to be carried out without much difficulty or expense.” Determining what is readily achievable involves a legal analysis of multiple factors, including the overall financial resources of the owner/operator of the public accommodation, and the prudent business owner will seek legal counsel soon after receiving a demand.
The perceived unfairness of drive-by demand letters has led some business owners to question the ethics of this practice. Washington has not taken any affirmative steps to prevent these, and even if it did it might not work. As of 2013, in California, where most of ADA accessibility lawsuits are filed, ethical rules prohibit letters simply demanding money for ADA violations. Unfortunately, this did not stem the tide of ADA lawsuits in that state – nearly 40% percent of all ADA accessibility lawsuits are filed in California.
In the absence of a quick monetary settlement, the next step is usually a lawsuit demanding that the business remove any physical barriers and – most importantly – pay the litigant’s attorneys’ fees. The court can also order specific compliance. For example, if a bathroom does not satisfy the technical minimum width requirements, a court may order you to widen your bathroom.
The lawsuit also may not end with just the violations found on the “drive by.” After the plaintiff files a complaint, their lawyer may seek to have their own ADA compliance expert inspect your entire property. Any newly discovered technical violations will likely become part of the lawsuit.
In Title III lawsuits involving hotels, restaurant, or bars, plaintiffs tend to identify certain common alleged barriers. One of the most commonly asserted exterior violations is the lack of an accessible path of travel to the entrance. Plaintiffs often claim that the establishment lacks or has an improperly constructed ramp or curb cut along the path of travel from the designated accessible parking spaces to the entrance. Another common claim is an allegation regarding improper hardware on the entrance doors (such that would require twisting or grasping) or that excessive pressure is needed to open the doors. Finally, Plaintiffs often claim that a hotel or motel’s pool does not provide a compliant pool lift for disabled individuals. Title III’s interpretive regulations, and some courts, suggest that remedying these types of barriers is “readily achievable” under most circumstances.
As for the interior areas, some of the more common barriers may include:
Prevention Is Possible
Hospitality businesses can take proactive compliance steps a claim ever occurs. The Northwest ADA Center is a good starting point for compliance information, including links to Accessibility Checklists (http://nwadacenter.org/toolkit/accessibility-checklists#) and even a landing page for hotels and lodging (http://nwadacenter.org/factsheet/accessibility-people-disabilities-hotels-and-places-lodging). The ADA National Network also publishes a checklist for surveying common barrier issues (http://www.adachecklist.org/doc/fullchecklist/ada-checklist.pdf ). Businesses should also remember to consult all applicable state, county, or city guidelines. For example, Seattle’s law requiring that single-occupancy restrooms be gender neutral is a public accommodation ordinance.
An even better approach is to consult with legal counsel or an accessibility consultant to identify the existence of any barriers to access. Involving an attorney early on may help keep the audit results – even if just an internal audit – confidential. Audits help show a business’s good faith efforts to comply. And in California for example, proof of an inspection before a claim is ever made can, under certain circumstances, lead to reduced statutory penalties. While Washington does not have a similar statue, proactively conducting an audit should still help defend against a lawsuit.
All businesses must prepare and implement an appropriate remediation plan that includes immediate repairs, but also a long term plan where needed repairs are extensive and expensive. Doing nothing once such issues are specifically identified is certain to trigger liability. A good auditor will provide a report with a clear outline of what needs to be fixed and, in turn, will help businesses develop a timeline to fix barriers over time when doing so immediately is not “readily achievable” due to financial constraints.
Also helpful would be to review, and if necessary rewrite, personnel policies to direct your employees to provide necessary assistance to patrons with disabilities. As with the prevention of most discrimination-based lawsuits, taking appropriate and meaningful preventive measures is the best defense.
If you have any questions about ADA compliance to prevent lawsuits, we are here to help you. Please feel free to contact the authors, Catharine Morisset, a partner in Fisher Phillips’ Seattle office, a member of its Hospitality Practice Group and an Association member, firstname.lastname@example.org or John Mavros, a partner working out of its Irvine, CA office, email@example.com. Fisher & Phillips LLP is a national law firm committed to providing practical business solutions for employers’ workplace legal problems.