Despite the actions of some people and groups, it’s not always necessary to file a lawsuit to have an ADA violation fixed at a business or public facility
By Amanda Laverman
Signed into law more than 25 years ago, the Americans With Disabilities Act (ADA) has done a great deal to help protect people with disabilities from discrimination. However, the ADA still faces difficulties, and sometimes the trouble occurs when people or groups try to take advantage of the law.
Specific problems center under Title III of the ADA, which requires places of public accommodations — such as doctors’ offices, restaurants, stores and hotels — to be accessible for people with disabilities. Sometimes these places fail to meet ADA requirements for a variety of reasons, including negligence and ignorance of the law.
There are people and groups across the country who have been trying to exploit a lack of compliance for financial gain. Rather than working with a store or restaurant to bring it into compliance, these groups file lawsuits seeking money.
Lawsuits regarding accessibility violations have been a hot topic in the news lately. While the ADA doesn’t allow damages in lawsuits, the named party in the suit is responsible for the attorney fees for both sides if they lose.
“Many times what’s happening is these lawyers are sending demand letters, and even though the ADA doesn’t allow for damages, someone might settle just to make it go away,” says Paralyzed Veterans of America (PVA) Associate General Counsel for Corporate and Government Relations Heather Ansley, Esq., MSW. “So they may say, pay us $5,000, and we will consider this matter settled and move on. They’re not trying to file an ADA lawsuit to actually make things better. ”
If You Find A Violation
There have been efforts to try and fix those types of situations, such as the ADA Notification Act, which was introduced in the U.S. House in February 2013.
This act would require the plaintiff to notify the defendant in writing regarding the ADA violations before filing a lawsuit. The ADA hasn’t supported these notification bills, which are expected to be a pertinent issue for Congress this year.
“The ADA would be the only civil rights law required to do that. They’ve already had 25 years to fix the problems. Now you are going to require us to give notification before we require them to comply with the rule of law,” says PVA Senior Associate Advocacy Director Lee Page.
Despite potential issues with the notification bills and the problems of frivolous lawsuits, there’s plenty you can do to honestly and properly fix an accessibility problem.
If you find a business is in violation of the ADA, you may file a complaint with the Disability Rights Section (DRS) in the Department of Justice. The complaint can be filed online through the ADA website (ada.gov), or it can be mailed or faxed.
The department will then investigate the complaints and seek to resolve the issue. The ADA also gives individuals with disabilities the right to file lawsuits and obtain court orders to stop violations in federal court. However, those facing accessibility obstructions can also seek assistance from sources other than the ADA, such as local civil rights commissions.
“It may be faster to file the complaint through your local civil rights commission. Then they can look at it from how this may violate local and state laws, and they may have more resources and be more quickly able to adjunct the claim,” says Ansley. “If there’s more than one thing that’s covered, you don’t have to go to the ADA. You can also try some of these other avenues, as well.”
The ADA isn’t always the only set of standards a place of public accommodation must follow.
There are also requirements on the local level, which vary state to state, and these standards may be more stringent than the ADA. Individuals with disabilities can sue businesses on these laws, which also may allow damages such as in Arizona and California. These local laws have been cited in some cases, including “drive-by lawsuits.”
That name was created because some laws don’t require the suing party be a customer of the business named in the suit. So, a lawyer representing an individual with a disability could drive by a business with the individual, notice a violation, such as a disabled parking sign not in the right location, and file a lawsuit.
Situations such as that can make it seem some people are looking for money and aren’t really interested in getting the issue fixed. Many times, you don’t need to file a lawsuit to correct an accessibility problem. Page says start by trying to speak with the business owner about the issue.
“First thing is to try to solve the problem, especially if someone who regularly tries to go to this business, or the business might not realize that they are in violation and don’t meet the customer’s needs,” says Page. “It behooves the business [to address the violation] because it expands customer base …. The law has a lot of flexibility in the ways to meet those accommodations.”
It’s up to business owners to ensure they’re compliant with all federal, state and local laws in regards to accessibility for individuals with disabilities.
The enforcement of these codes is the responsibility of state or local officials who don’t have the authority to enforce the ADA. In addition to the Department of Justice, the ADA also relies on local civil rights commissions to help enforce its standards.
“The ADA has very specific standards for how things have to be designed, which is different from other civil rights laws. You can be in violation of not having a door handle in the right place or something not as wide as it should be. That would be a legitimate violation of the ADA. We’re running against people that are saying that’s kind of a picky violation,” Ansley says. “The standard is the standard because that was what was decided by groups of experts to accommodate people with disabilities. If we didn’t have those standards, it would be hard to determine what the standard is. If the law just says a restroom has to be accessible, it might be kind of hard to determine what that means. What are we measuring against? How do we know if it is acceptable?”
The ADA National Network has 10 regional centers across the country that serve as experts in regulations at local, regional and national levels. These centers don’t only advise individuals with disabilities, but they’re also a great resource for anyone seeking to be in compliance or better serve or employ individuals with disabilities.
These centers offer educational seminars, webinars, trainings, publications and more. They don’t regulate or enforce any of the requirements but serve as an educational resource for everyone.
“The ADA regional centers are a really good resource because they are more local. They do have a lot of resources they use to distill some of the ADA-specific information into more adjustable forms. The regional centers have specialties. The mid-Atlantic one does a lot of work on hospitality, working with hotels, restaurants on how to work with people with disabilities,” Ansley says. “I would recommend not only individuals with disabilities, but also businesses, go to these regional centers. They are just there to educate and help people understand what they’re supposed to be doing.”
Training from the network is a good way for businesses to avoid an ADA or local level regulation lawsuit because it helps them stay informed on the various accessibility codes, educate staff members and take ongoing actions to stay compliant. The ADA and corresponding regional networks offer numerous sources for being compliant and learning best practices for serving and employing those with disabilities.
According to the ADA, more than 50 million Americans have disabilities. Not only is accessibility and compliance the law, this group has significant buying power, skills and expertise to contribute to the workforce.