Single-Click ADA Lawsuits: High-Speed Claims Against Non-Compliant Businesses

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2017 Issue Two

Single-Click ADA Lawsuits:  High-Speed Claims Against Non-Compliant Businesses

By:  John S. Adams

Two plaintiffs lawyers were sitting in a bar, when one says:

“Why so glum?”
“I hate client development. I’m supposed to be a lawyer, not a salesman!”
“Hmm. Why the trouble with bringing in new clients?”
“It’s just tough to find them without putting my face on a billboard.”
“No. I mean why trouble with bringing in new clients at all?”
“You mean like I should go in-house?”
“No. I mean like recycling the same client dozens of times with new claims, and all you have to do is browse the internet.”
“Like an app?”
“No, the ADA!”

It’s easy to jest at the expense of the plaintiffs’ bar, but the lesson is real. There is a new trend developing for activist attorneys and their clients to file dozens of ADA claims against dozens of different businesses—all in a matter of days. And there is an app for that.

Attorneys and their clients have realized that certain ADA violations are visible from Google Earth. So now, armed only with a computer, attorneys can scan entire cities from the sky looking for obvious violations, like hotel pools without motorized lifts, improper curb cuts, and improperly marked handicapped parking spots. Meanwhile another digital storm is brewing as the prevalence (and legitimacy) of ADA claims against websites grows.

Targets mostly are businesses that are open to the public such as restaurants, doctors’ offices, banks, offices of accountants or lawyers, and any type of retailer. Those businesses are required to make all readily achievable modifications to facilitate access, regardless of the age of their building.

The ultimate goal of a business must, of course, be to bring its building into compliance with all requirements of the ADA. This can be done, and there are professional services dedicated to helping businesses comply. But as a matter of priority, there are a few things businesses can do to avoid being an easy target for a lawsuit:1

1.  Parking. If you have 4 or more spaces, you must have at least one dedicated, accessible parking spot, and an additional spot must be added for every 25 parking spaces (up to 100). Those spaces must have a sign posted 5 feet above the ground in front of it to mark it. You must have at least one van accessible space (11 feet wide) and an accessible aisle between spaces (5 feet wide). Parking spaces must also be located on level ground—no more than a 1:48 slope. Crooked signage and faded lines may invite potential plaintiffs to start counting and measuring in your parking lot.

 2.  Curbs.  An accessible route must be provided between the accessible parking space(s) and an accessible building entrance. This route must have no steps or steeply sloped surfaces, and it must have a firm, stable, slip-resistant surface. Curbs without ramp cutouts are a common, easily visible violation.

 3.  Entrances. If there is more than a ¼” vertical lip at the entrance to a building, it must be beveled, and if it’s more than ½”, a ramp or lift is required. Entrances (and other accessible elements) must also provide an unobstructed maneuvering space of 48” by 30”—that is a large rectangular area in front of the door void of any clutter.

4.  Protrusions. Pathways must also be clear of anything protruding into the pathway from above. For example, awnings, railings, pipes, and support beams may all be impediments to disabled persons. Anything protruding more than 4” from a wall, between 27” and 80” above the ground, will make a pathway inaccessible. A common mistake is for businesses to have properly designed pathways that become cluttered with trash cans, benches, and furniture, making those paths inaccessible.

Once inside a building, myriad other requirements exist. For example, bathrooms must provide maneuvering space, fixtures must be mounted at the correct heights, and doors cannot require more than 5 pounds of force to open. For the moment though, interior violations are less likely to attract lawsuits than open and obvious violations visible outdoors.

Business websites are another potentially lucrative source of easy-to-find claims for lawyers. Lawsuits against companies for website inaccessibility have been ongoing since at least 2006, and several appellate courts have ruled that the ADA, in fact, applies to websites. In 2008–09, Target, Inc. paid $9.7 million to settle a lawsuit brought by the National Federation of the Blind based on its inaccessible website. Moreover, the Department of Justice has proposed guidelines to improve website accessibility, which are now expected in 2018 (after the April 2016 release was delayed). So it would be wise to begin anticipating change, and it may be worthwhile to begin discussing ways to:

a.  include text-based alternatives to allow essential components to be converted to braille,  speech, or larger print;

b.  permit keyboard interaction to allow access to those who cannot operate a mouse; and

c.  increase compatibility with assistive technologies to enable third-party technologies to interact with your site.

All of this is to say, “watch out.” It is now easier than ever for plaintiffs to find and bring claims against businesses. Fortunately, avoiding many of these claims does not require extensive, costly renovations. Instead, a fresh coat of paint, some minor modifications, and simple de-cluttering should help businesses shed their most flagrant violations. Likewise, tweaking a web design now may prevent costly overhaul in the future.

Once a business appears more accessible, and perhaps is in fact more accessible, whether physically or digitally, more customers and clients may find their way inside.
1.  The suggestions in this article are illustrative and only meant as general guidelines, not as specific legal advice. You should consult counsel to determine the specific requirements applicable to your business, taking into account the age of your facility, timeline of alterations, and other factors.