Responding to an ADA Lawsuit
You may have heard about the American’s with Disabilities Act (ADA) and wondered how it
might affect your business. Perhaps you heard about predatory plaintiffs using the ADA
to extort small businesses in ‘drive-by’ lawsuits. Even if you haven’t heard of the ADA,
the reality is that you likely have obligations to make your small business
accessible for the disabled. Instead of waiting for a lawsuit to hit you, consider now
what you can do to proactively protect your business.
ADA Basics
Enacted in 1990 by President George H.W. Bush, this landmark civil rights legislation
guarantees equal opportunity for individuals with disabilities. The ADA requires that
facilities and businesses that are open to the public be accessible for people with
disabilities.
Since the passage of the ADA, small business owners have spent hundreds of millions of
dollars on their businesses to remove barriers and provide accessible public
accommodations. Unfortunately, these investments do not immunize businesses from
abusive lawsuits. The complexity of the law makes it difficult for small businesses to
understand what modifications are required and makes small businesses easy targets for
predatory plaintiffs and attorneys.
This does not constitute legal advice, and you should consider consulting an attorney about any laws and regulations that are applicable in your state, locality or particular type of business.
Responding to an ADA Complaint
The instinct for many small business owners hit with an ADA complaint is to settle as
quickly as possible. But experts urge caution in defending against a claim. You want to
avoid paying too much or paying too little (and facing the same or similar claim next
week if the accessibility issue isn’t corrected).
- First and foremost, take the complaint or demand letter seriously. Read it and
don’t fail to respond. Immediately contact your insurance carrier to see if the
carrier will provide defense counsel, if not, contact an attorney. If your attorney
isn’t comfortable handling an ADA case, find one who is comfortable. - Thoroughly photograph all areas of your property. You can be sure that the
plaintiff has likely done the same. Because changes are sometimes made, it’s
important to have nearly identical images. But make sure you take pictures of the
entire business since there may have been alternatives available to the plaintiff
that pictures can document. - If you rent, contact the landlord and tender a demand for a defense. The longer
you wait to do so, the less likely you’ll be able to recover your legal defense costs. - Talk with your attorney about whether it’s appropriate to make immediate
modifications to your business property. It may be possible to get a lawsuit
dismissed if a correction has been made, and some plaintiffs may voluntarily
dismiss a case if barriers are removed promptly. - Do not jump into a settlement with the plaintiff by agreeing to remedy only the
items identified in the demand letter or complaint; the claim probably hasn’t
identified all issues that might be out of compliance. Fixing only the parking lot
might lead to a complaint next week that covers interior issues. If possible, have a
survey done of your business by a qualified ADA specialist who can identify all
barriers that need to be remedied.
More Information from NFIB’s Small Business Legal Center
