• Disability Groups and Their Members Bring Thousands of Lawsuits
  • December 30, 2003 | Author: Richard M. Hanchett
  • Law Firm: Trenam, Kemker, Scharf, Barkin, Frye, O'Neill & Mullis Professional Association - Tampa Office
  • Business establishments open to the public, such as restaurants, hotels, grocery stores, department stores and hospitals, are facing an explosion of lawsuits under Title III of the Americans with Disabilities Act (ADA). Plaintiffs claim that these suits are being brought to enforce the rights of individuals with disabilities; their targets see them as abuses of the ADA brought primarily to create legal fees for plaintiffs' lawyers.

    Organized groups of disabled individuals, such as Access Now, Access for America and The Association for Disabled Americans, have teamed up with discrimination attorneys to file thousands of lawsuits across the country. Florida businesses are among the defendants in the litigation brought by these groups. For example, Access Now has filed more than 600 cases in the last few years in Florida.

    Title III of the ADA
    Title III of the ADA prohibits discrimination on the basis of a disability by places of public accommodation. It applies to entities that own, operate or lease such facilities. A few categories of facilities, including churches and private clubs, are excepted.

    The law grants a disabled individual who has been denied access to a place of accommodation based upon a disability the right to seek injunctive relief requiring correction of the condition(s) preventing access. It does not allow for recovery of damages, but does provide for an award of attorneys' fees if the plaintiff prevails. These fees often far exceed the cost of remedying the alleged violations.

    In striking a balance between guaranteeing access to individuals with disabilities and recognizing the legitimate cost concerns of businesses, the ADA establishes different standards for new construction and existing facilities. For places of accommodation constructed after the ADA's January 26, 1992 compliance date, otherwise known as "new construction," compliance is the strictest. New construction must be "readily accessible," which is defined as being in full compliance with the American's with Disabilities Act Accessibility Guidelines (ADAAG), a 200-page manual promulgated by the Department of Justice that contains highly technical requirements for facilities governed by the ADA.

    Public accommodations built before the compliance date are deemed "existing facilities" and have a lower threshold of accessibility. For these facilities, architectural barriers must be removed if doing so is "readily achievable," which means that the barriers can be removed without much difficulty or expense. This determination will depend on the nature of the alleged barrier and the financial status of the company that owns, operates or leases it.

    Some cases have held that Title III generally only requires that a private entity take remedial measures that are effective, practical and fiscally manageable. If a facility has been renovated (i.e., modified in a way that affects usability), the renovated area (and possibly travel paths to and from the area) is subject to the "new construction" standard.

    Increase in Access Litigation
    The Department of Justice, granted the authority and responsibility for enforcement of the ADA and ADAAG, has brought a number of enforcement actions. However, disability advocacy groups and their members have attempted to act as "private attorneys general" and filed thousands of suits with no end in sight.

    Because access litigation is on the rise, it has been subject to increasing scrutiny by the courts and the media. A number of the firms representing access groups have filed nearly a thousand lawsuits each. Some of the more prolific plaintiffs' lawyers have been asked by federal judges to prove that their clients are not getting paid or making a living from filing access suits.

    On the other hand, disability advocacy groups justify the number of suits they file by arguing that the ADA was enacted more than ten years ago and, therefore, companies have no excuse for still failing to comply. Companies defending these cases disagree. Many (particularly those with facilities that were recently constructed) point to the fact that they have taken expensive steps to offer substantially equivalent accessibility to the disabled and are frustrated with being sued over de-minimis or technical violations of ADAAG.

    Some Available Defenses
    Only a handful of Title III cases have been tried. Recently, several cases have resulted in favorable rulings for defendants, where the disabled individuals can obtain actual access to the facility or do not have standing to sue.

    To establish standing, an individual must show he or she was denied access by a barrier based upon a disability. Recent decisions have held that difficulty or embarrassment does not amount to a denial of access. In addition, they have prohibited plaintiffs from suing for violations they did not personally encounter prior to the filing of the complaint and/or that have no relation to their disability. The courts have also required that the plaintiff demonstrate the potential for future injury by showing that he or she has a real intention to return to the facility. As a result, a plaintiff who lives far away from the facility or who has no plan to return would not be entitled to relief. Courts have also found that the advocacy organizations themselves lack standing to represent the interests of their individual members because of the need for individual participation.

    Another possible defense is showing that the facility substantially complies with the ADA and that the company has undertaken efforts to increase access to the disabled. In addition, the court may deny injunctive relief for technical violations because access was not denied.

    Finally, the ADAAG incorporates the concept of construction tolerances. All dimensions in the ADAAG are subject to conventional building industry tolerances for field conditions. Therefore, minor variations from ADAAG may be acceptable, depending upon the applicable tolerances and their consistency with ADAAG. There is also an exception if meeting the requirements of the ADA would be structurally impractical.