By Brooke M. Nixon
From January 1, 2015 to June 30, 2015, the number of Americans with Disabilities Act (ADA) Title III “access lawsuits” filed in federal court was more than 2,000. Over the same period in 2016, more than 3,400 Title III lawsuits were filed, which is about a 63 percent increase. If the exact same number of lawsuits are filed in the second half of 2016 that would put the total at 6,800 by the end of the year. That would be a 43 percent increase over 2015’s final tally.
In Alabama, more and more often, small businesses, retailers and restaurants are facing a particular type of lawsuit. These lawsuits are ADA Title III access lawsuits where a disabled individual alleges they have been denied access to and enjoyment of places of public accommodation due to conditions that allegedly did not meet federal ADA regulations. Over the last few years, these “ADA access lawsuits” have increased dramatically across the country. Unlike Title I of the ADA, which requires employees t o bring their grievances first to the Equal Employment Opportunity Commission (“EEOC”) prior to bringing a lawsuit, denial of access lawsuits pursuant to Title III of the ADA does not require any government pre-screening or other notice to businesses, thus allowing for the increase in private Title III suits. For businesses, the costs of bringing their establishment into ADA compliance can be significant, but dealing with a Title III suit could be just as costly, if not more so, due to the costs of litigation, settlement payments and attorney fees. As a result, it is important that our clients are knowledgeable about whether their business is subject to Title III of the ADA and, if so, how they can walk the tightrope of compliance without spending unnecessary money on renovations.
Overview of The Americans With Disabilities Act
The ADA was signed into law on July 26, 1990 by President George H.W. Bush. The ADA was the nation’s first “comprehensive civil rights law addressing the needs of people with disabilities, prohibiting discrimination in employment, public services, public accommodations, and telecommunications.”1 The purpose of the law is to ensure that individuals with disabilities have equal rights and opportunities as everyone else. The ADA is divided into four titles, each of which addresses the treatment of disabled individuals in specific areas of public life.
Title I of the ADA includes the employment discrimination provisions.2 Title I is designed to help individuals with disabilities access the same employment opportunities and benefits available to individuals without disabilities. Title I requires employees to file their complaints with the EEOC and be granted “right-to-sue” letters before pursuing their discrimination suit in court.3
Title II requires that state and local governments offer individuals with disabilities an equal opportunity to benefit from all of their programs, services and activities (e.g., public education, employment, transportation, recreation, etc.).4
Title IV contains a variety of provisions relating to the ADA as a whole, including its relationship to other laws, state immunity, its impact on insurance providers and benefits, prohibition against retaliation and attorney’s fees. It also provides a list of certain conditions that are not considered “disabilities” under the ADA.
Title III, the center of this article, is the law which requires places of public accommodation to ensure that people with disabilities have access to those locations. Thus, when an individual brings an ADA Title III lawsuit the plaintiff is typically alleging that they have been denied access to certain public places due to physical access barriers.
Title III sets forth the underlying prohibition against discrimination: “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to) or operated a place of public accommodation.”5 Discrimination is defined under Title III to include “a failure to make reasonable modifications . . . unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such . . . facilities . . . or accommodations.”6 Discrimination also includes a failure to remove architectural barriers in existing facilities where such removal is “readily achievable,” or where removal of a barrier is not readily achievable, “a failure to make such . . . facilities . . . or accommodations available through alternative methods if such methods are readily achievable.”7 With respect to a facility or part of a facility that has been altered by an establishment in a manner that affects or could affect the usability of the facility, discrimination includes a “failure to make alterations in such a manner that, to the maximum extent feasible, the altered portions of the facility are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs.”8
Title III applies to businesses and nonprofit service providers that are considered to be a place of “public accommodation,” privately-operated entities offering certain types of courses and examinations and commercial facilities.9 A “public accommodation” is defined by ADA regulations to include: “(1) an inn, hotel, motel, or other place of lodging, except for an establishment located within a building that contains not more than five rooms for rent or hire and that is actually occupied by the proprietor of such establishment as the residence of such proprietor; (2) a restaurant, bar, or other establishment serving food or drink; (3) a motion picture house, theater, concert hall, stadium, or other place of exhibition or entertainment; (4) an auditorium, convention center, lecture hall, or other place of public gathering; (5) a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment; (6) a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment; (7) a terminal, depot, or other station used for specified public transportation; (8) a museum, library, gallery, or other place of public display or collection; (9) a park, zoo, amusement park, or other place of recreation; (10) a nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education; (11) a day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establishment; and (12) a gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation.”
Clearly the list of “public accommodations” is extensive. Places of public accommodation must comply with specific requirements set out in the ADA regulations related to architectural standards for new or altered buildings; provide reasonable modifications to the entity’s policies, practices and procedures; and provide effective communication with people with hearing, vision or speech disabilities who may visit the entity.11 Additionally, places of public accommodation must remove barriers in existing buildings when it can do so without much difficulty or expense.12
Complaints of Title III violations may be filed with the Department of Justice (“DOJ”). However, Title III may also be enforced through private lawsuits, meaning it is unnecessary to file a complaint with the DOJ (or any other federal agency) or to receive a “right-to-sue” letter before filing a Title III access suit.
The Attorney General of the United States is responsible for publishing standards, through regulations, that implement the requirements of Title III. The DOJ originally published its Title III regulations in 1991, which included the 1991 ADA Accessibility Guidelines (the “1991 Standards”).13 In 2010, the DOJ published regulations revising the old 1991 regulations, including the adoption of an updated ADA Standards for Accessible Design (the “2010 Standards”).14 These standards establish design requirements for the construction and alteration of facilities covered by Title III and should be consulted before such construction or alterations begin. Compliance with the 2010 Standards was required for places of public accommodation by March 15, 2012. The 2010 Standards can be found in 28 C.F.R. part 36 and also in a PDF...