Fighting in the Next Frontier of ADA Litigation

Date: October 31, 2017

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From the beginning, the Americans with Disabilities Act has required that places of public accommodation must be accessible to the disabled community. This requirement has always applied to physical spaces. For example, buildings constructed since 1992 must be fully compliant with ADA access regulations. But the ADA applies to older buildings as well. As explained in more depth here, owners and tenants of older buildings must remove barriers to access to the extent such changes may be deemed “readily achievable” or “easily accomplishable.”

These requirements have proven burdensome and a cesspool for trolling plaintiffs. Yet as bad as ADA lawsuit abuse has become, we may see a new torrent of litigation because ADA plaintiffs are now asking the federal courts to expand the ADA’s access requirements to non-physical spaces. Specifically, these new lawsuits argue that the ADA’s requirement to remove barriers to access applies to the digital realm—meaning that a small business might be sued if its website is difficult for a disabled person to use.

For example, in Winn-Dixie v. Gil, a plaintiff alleges that he had problems with a grocery store’s website. This lawsuit threatens to open the gates for a deluge of similar claims against businesses of every size and in every industry. As such, NFIB Small Business Legal Center filed an amicus brief in the U.S. Court of Appeals for the 11th Circuit arguing that it is fundamentally wrong for courts to extend ADA regulation to non-physical spaces. The text of the ADA makes clear that it applies only to physical spaces and only Congress could extend the ADA to the internet. Moreover, the unauthorized expansion of the law by courts has created tremendous uncertainty for the business community since there are no existing regulatory standards. Currently, courts are divided on whether these lawsuits should be allowed. And we can expect to see more ADA lawsuits of this sort until we get some definitive clarification. In the interim, NFIB will continue fighting to limit the ADA to physical spaces. We’re optimistic that, at the end of the day, we will prevail. But, in any event, we will still have ADA trolls—at least until Congress amends the Act to allow businesses a “right to cure” for good faith mistakes.

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