In recent months we’ve heard from business owners throughout the country who are struggling to come into compliance with the Americans with Disabilities Act (ADA)—including several who have been hit with costly lawsuits. Lawsuit abuse is an especially rampant problem in California, where state lawmakers have given plaintiffs special financial incentives to bring suit over the most minor of infractions. To be sure, California has been dubbed a “judicial hell hole.” But the reality is that ADA abuse is a nationwide problem.
Enacted in 1990 by President George H.W. Bush, this landmark civil rights legislation guarantees equal opportunity for individuals with disabilities. By now most business owners understand that the ADA applies in the workplace—so as to prohibit employers from discriminating against individuals with disabilities, and requiring companies to provide “reasonable accommodations” to disabled employees. But fewer understand that the ADA actually require owners to make physical changes to their property. Specifically, the ADA requires that facilities and businesses that are open to the public must be accessible for people with disabilities.
Thus, the ADA imposes an affirmative obligation to remove “barriers to access,” which may inhibit disabled individuals from enjoying places of “public accommodation” on the same terms as everyone else. This means that if you run a bar, restaurant, gym, coffeehouse, retail establishment, hotel—or any business that invites the public inside—you need to affirmative steps to ensure that your building is ADA compliant. For example, you must provide a specified number of handicap parking spaces, depending on the size of your lot—as well as proper signage.
Building Design Standards under the ADA
Following enactment of the ADA in 1990, the federal government issued guidelines specifying design standards for all new construction. Any construction commenced after 1992 must be 100% compliant with these standards. But in 2010 those guidelines were revised. Accordingly, any building constructed after March, 2012 must meet the new standards.
Unfortunately many businesses are out of compliance with these standards, but do not realize until it is too late. For example, most business owners have no idea that the ADA regulates how the pressure needed to open doors, or the height of toilet seats. (If it takes more than 50 pounds of pressure to open a door, or if their toilet seat is not between 17-19 inches high, you have a compliance problem).
Here is a helpful checklist that you could use with step-by-step instructions on how to ensure compliance through a careful physical inspection of your facilities. But it may be advisable to higher an expert to inspect your business for potential problems. And in California there are incentives for using a “certified access specialist.”
What About Buildings Constructed Before 1990?
Unfortunately there is no guarantee of grandfathered rights under the ADA. The law requires businesses remove access barriers to the extent a change is deemed “reasonably achievable.” This means that the government considered the change to be “easily accomplishable,” depending upon the size and resources of your business. But it is important to know that the Department of Justice has put together a list of 21 changes that are generally presumed to be achievable—even for mom and pop businesses. This includes improvements such as creating accessible parking spaces; installing ramps; reposition shelves; widening doors; rearranging toilet partitions; installing raised toilet seats.
Once again, it may be prudent to consult a professional certified access specialist to identify problems. One avenue may be to contact your local building department to see if they have an access specialist on staff who can provide guidance. And in the interim, it may also be prudent to post a no photography sign, which might help deter plaintiffs trolling for lawsuits.
Since many small business owners rent space in buildings and facilities that were constructed decades ago, they are subject to the ADA’s barrier removal requirement—as is the owner. But unfortunately, removing barriers to access can be both difficult and expensive. Accordingly, it may be prudent to consult with your Certified Public Account as to whether contemplated improvements will qualify for tax credits or deductions.
What Should I Do When I’ve Been Hit with a Lawsuit?
The instinct for many small business owners hit with an ADA complaint is to settle as quickly as possible. But experts urge caution because settling a claim does not resolve the underlying issue, unless you address the compliance problem. Here are a few prudent steps:
1. 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.
2. 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 to the plaintiff that pictures can document.
3. If you rent, contact your 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.
4. 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. Moreover, recent reforms in California allow for a reduction in damage awards for businesses that take prompt action to remedy problems.
5. 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 the 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.
Where Can I Go for More Guidance?
NFIB Small Business Legal Center’s Senior Staff Attorney, Luke Wake, recently spoke with business owners in Kingsburg, California on ADA compliance, and how to handle legal problems should they arise. We’ve archived a recording of the talk online here, as well as a copy of his presentation. It should prove an especially helpful resource for California business owners.
In addition, it may be prudent to check-out this list of the top ten ADA violations, as reported by the California Commission on Disabilities.
*This article does not provide legal advice. Employers are advised to retain counsel from a trusted attorney with experience in employment law.