10 Oct DRIVE BY LAWSUITS ARE YOU A POSSIBLE TARGET?

ADA PUBLIC ACCOMMODATION REQUIREMENTS

Almost everyone knows that the Americans with Disabilities Act prohibits discrimination in employment.  We speak frequently on the ADA provisions that prohibit discrimination of an otherwise qualified person with a disability in the employment setting.  However, ADA’s Title III prohibits discrimination in public accommodation.  According to the ADA regulations, a place of public accommodation can include any private establishment, including restaurants, hotels, theaters, convention centers, retail stores, shopping centers, dry cleaners, laundry mats, pharmacies, doctor’s offices, hospitals, museums, libraries, parks, zoos, amusement parks, private schools, daycare centers, health spas, and bowling allies.  The statute also covers commercial facilities which include non-residential office buildings, factories, and warehouses, whose operations affect commerce.

Title III requires that individuals with disabilities be provided an equal opportunity to enjoy the goods and services of a place of public accommodation.  This includes modifying policies, practices, and procedures that deny equal access to these individuals.  The statute’s provisions also require other means of accommodation.  What is alarming, however, is the increase in the number of lawsuits that have been filed in recent years under Title III of the statute.

Recent reports suggest that many employers such as restaurants, bars, other retail establishments, and urban areas are being subjects of “drive-by” lawsuits.

The nature of a “drive-by” lawsuit is that the plaintiff, or the person claiming to be injured by the failure to provide reasonable public accommodation, may never, in fact, have visited the establishment.  They simply drive-by looking for what might be considered technical violations of the requirements of the Americans with Disabilities Act, Title III.  Indeed, the regulations require various alterations, auxiliary aids, and other modifications to ensure accessibility by handicapped individuals.  In other words, if something on the outside of the establishment, such as a doorway being too narrow or there being no ramp, might make the establishment subject of a “drive-by” lawsuit.

The lawsuit may typically begin with a demand letter.  If plaintiff’s attorneys are unsuccessful in obtaining some monetary relief, they can very easily evolve into full blown lawsuits with various accommodation accessibility experts having access to the employer’s premises looking for additional “technical” violations.

An employer can prepare itself by engaging both accessibility consultants and legal counsel to review existing facilities to ensure that they are properly accessible, and meet the requirements under the Americans with Disabilities Act.  

In addition, not only do employers need to be concerned about the federal regulations in this regard, but they must also be cognizant of other applicable state, county, and city accommodation guidelines