• Title III ADA Suits Are On the Rise
  • March 25, 2015 | Authors: John J. Buckley; Steven E. Hoffman
  • Law Firm: Norris McLaughlin & Marcus, P.A. A Professional Corporation - Allentown Office
  • Since its passage twenty-five years ago, the Americans With Disabilities Act (“ADA”) has had a sizable impact on businesses both large and small. Although businesses are well-versed in the employment discrimination provisions of the ADA, which are contained in Title I, they must also be aware of the ADA’s accessibility requirements set forth in Title III.

    Title III of the ADA applies to commercial facilities (e.g., factories, office buildings, and warehouses), private entities that offer certain examinations or courses related to educational and occupational certification, and, most notably, public accommodations. “Public accommodations” are private entities that own, operate, lease, or lease to places of public accommodation. The law includes twelve categories of “places of public accommodation,” which encompass virtually all businesses that serve the public.

    The ADA regulations enumerate the accessibility requirements that businesses must follow to comply with Title III. These regulations address features both outside of a business (e.g., parking lots, curbs, ramps) and inside of a business (e.g., restrooms, doorways, counters). All new construction - including modifications or alterations - must be fully compliant with the regulations. Businesses also have a continuing obligation to remove non-compliant architectural barriers in existing facilities if the removal is readily achievable. Barrier removal is “readily achievable” if it is “easily accomplishable without much difficulty or expense.” Whether removal is readily achievable depends upon a business’s size and resources.

    Any individual with a disability who is denied access to a place of public accommodation due to a non-compliant architectural barrier may sue under Title III for an injunction requiring the business to become ADA-compliant and reasonable attorney’s fees, costs, and expenses. These suits are particularly frustrating for businesses for several reasons. First, many are filed as putative class action suits that allege multiple violations at multiple facilities which increases the complexity of the case. Second, they are costly to defend, as an architect or other expert will be needed to determine whether a facility is compliant and whether barrier removal is readily achievable. Next, there is no requirement that the plaintiff or her counsel confer with a business before bringing suit, leading many businesses to feel ambushed. Finally, there is no “grandfather clause” that exempts facilities built before the ADA from compliance, nor is it any excuse that a building complies with local codes and ordinances but not the ADA.

    Given these incentives for plaintiff’s attorneys, it comes as no surprise that the number of Title III ADA lawsuits filed has been on the rise. According to a recent study, nearly twice as many Title III suits were filed in Pennsylvania’s federal courts between July 1, 2012 and January 1, 2015 than during the preceding thirty-month period. These suits - most of which were filed by a few individuals represented by a small number of plaintiff’s attorneys - frequently settle before trial, resulting in businesses paying the plaintiff’s attorney’s fees as well as the cost of remediating non-compliant facilities.