- Don't Be A Title III ADA "Test Case." Here's How To Fight Back
- August 20, 2013 | Author: Michelle Rippon
- Law Firm: Constangy, Brooks & Smith, LLP - Asheville Office
Since September 2011, approximately 40 cases have been filed in North Carolina under Title III of the Americans with Disabilities Act (the "public accommodation" section). Most of these are "tester" cases brought by one woman, Denise Payne, and the Ft. Lauderdale, Florida-based National Alliance For Accessibility, Inc. Ms. Payne, a "serial plaintiff," is a resident of Florida who has cerebal palsy and uses a wheelchair.
Public accommodations -- which include hotels, restaurants, shopping malls, and retail stores -- are prohibited from discriminating against individuals with disabilities and must be designed, built, and altered in compliance with standards set forth in the ADA Title III Technical Assistance Manual. (The U.S. Department of Justice enforces Title III of the ADA, not the Equal Employment Opportunity Commission.)
Under Title III, a plaintiff is not required to provide a business with a notice of violation or to seek remediation before suit is filed. In part because of this, many public accomodations are caught off guard and quickly agree to settle, usually with an agreement to remediate the violations and pay attorneys' fees of about $10,000. These cases are obviously lucrative for plaintiffs' lawyers -- 40 cases a year at $10,000 a case, with little or no work -- in large part because defendants are unaware of any defenses they may have and prefer settlement over the risks of litigation.
But public accommodations in North Carolina and elsewhere may have a good defense, at least to lawsuits brought by Ms. Payne. Because she is a resident of Florida, it is virtually impossible for her to return to these facilities; therefore, she can prove no "injury in fact" and has no standing, to sue. The U.S. District Court for the Western District of North Carolina has dismissed several of these lawsuits, as have many courts nationwide. Here are links to a magistrate's recommendation and the court's order adopting the recommendation in one North Carolina case. If a retailer raises the standing issue, the plaintiff may simply dismiss her case voluntarily. However, even if she does not, it is usually still cost-effective for the employer to file a motion to dismiss and wait for a ruling before considering settlement. It also sends a message to serial litigants that they chose the wrong "victim."