Thought Leadership

Defending Against the Drive-By ADA Lawsuit

An incredible number of businesses have been sued in Minnesota under the Americans with Disabilities Act (“ADA”).  One individual has filed multiple lawsuits that look nearly identical.  It is not easy to prevent lawsuits like these.  Here are tips for avoiding liability under the ADA no matter what type of business you operate:

  1. Make sure hallways and elevated sections of public areas are obstruction free.  Even temporary obstructions like boxes that limit a disabled person’s ability to enter that part of the building can be a basis for liability.  Make a plan to keep pathways free of obstruction.
  2. Closely review a certified copy of your insurance policy to see if an ADA claim is covered.  Do not rely on oral statements from an insurance broker.  What is covered is governed by a policy, not what people think might be in a policy.
  3. Hire an ADA consultant to review your building to determine compliance with the ADA guidelines.
  4. Print the Department of Justice’s Americans with Disabilities Act Architectural Guidelines (“ADAAG”) found at the following link:  Read and follow the guidelines.
  5. Be sure any substantial renovation complies with ADAAG guidelines.

The framework for assessing liability is important to know.  Any business that operates a “public accommodation” can be sued under the ADA if a disabled person can meet the following criteria:

  1. The person is disabled as that term is defined under the statute;
  2. The business is a private entity that owns or leases a place of public accommodation; and
  3. The disabled plaintiff was denied a public accommodation due to the person’s disability.[1]

A person has a disability if he or she has a physical or mental impairment that substantially limits one or more major life activities.  This is a broad definition and fits several categories of people.  A public accommodation is also broadly defined.[2]  The litigation I have seen focuses on whether the person was denied access.

A person can claim they were denied public accommodation when the business has violated an applicable accessibility standard.[3]  There are three standards to consider:

  1. New Construction.  These standards apply to all public accommodations built after January 26, 1992.
  2. Alterations.  These standards apply to the altered portion of any building altered after January 26, 1992.
  3. The “readily achievable” provisions.  These standards apply to unaltered portions of a building constructed before January 26, 1992.

Obviously a key date in understanding a restaurant’s liability is January 26, 1992.

When I counsel a client, one of the first questions I ask is when the building was built.  If it was built after 1992 I ask if there were any serious alterations to the building.  An altered portion of an existing building altered after January 26, 1992 must recognize federal government accessibility standards, “to the maximum extent feasible,” to be “readily accessible to and usable by” disabled people.[4]  To satisfy the standard, businesses must consult the “ADAAG”.[5]  These guidelines lay out the technical structural requirements of places of public accommodation.”

Buildings Altered After January 26, 1992

The ADAAG states an alteration is a change to a place of public accommodation or a commercial facility that affects or could affect the usability of the building or facility or any part thereof.  Examples of these alterations focus on changes or rearrangement of the configuration of the walls and full-height partitions.  Normal maintenance such as reroofing, painting, wallpapering, asbestos removal and other mechanical or electrical systems are not alterations unless they affect the usability of the building.[6]  Reconstruction after a fire can be an alteration.[7]  Re-wallpapering does not count, reconstructed walls or new toilets, fixtures would invoke the ADA.

Building Unaltered After January 26, 1992

The ADAAG sets forth whether an architectural element prohibits full and equal access to individuals.  In existing but unaltered buildings, architectural barriers must be removed where it is “readily achievable” to do so.[8]  Removable barriers are “readily achievable” when it is “easily accomplishable and able to be carried out without much difficulty or expense.[9]  If a business can show their removal of the architectural barrier is not readily achievable, it nevertheless is liable under the statute if it fails to “make such goods, services, facilities, privileges, advantages, or accommodations available through alternative methods as such methods are readily achievable.[10]

In the absence of a “alteration” after January 26, 1992, the “readily achievable” standards apply.  All business owners have an ongoing obligation to remove any architectural barriers where it is “readily achievable” to do so.[11]  The removal of barriers is readily achievable when it is “easily accomplishable and able to be carried out without much difficulty or expense.[12]  This standard is very context specific and bright line rule is difficult.  Here are the factors to be considered:

  1. The nature and cost of the repair.
  2. Overall financial resources of the business.  This encompasses the number of people employed, the impact on expenses and resources, and other operational issues.
  3. Overall financial resources of the business.
  4. Type of operation, including the composition of the workforce.  A business has the burden in establishing that remediation is not readily achievable.

Again, this criteria leaves a lot of room for interpretation.  This is probably why plaintiffs and their attorneys find ADA claims worth pursuing.  I have seen a case where non-compliance with ADAAG guidelines of less than two inches led to liability.  Had this business fought the lawsuit it would not have faced substantial liability.  Sadly, the cost of the fight in court required an early, distasteful settlement.  This scenario is all the more reason why businesses should take steps to mitigate their exposure.

There is nothing tasteful about ADA claims like this.  I doubt Congress thought its law would be used to sue people over such minor infractions.  Insurance companies rarely offer ADA coverage.  I contacted multiple independent insurance agents and they could not find an insurer for such claims.  Because few insurers offer coverage every business that invites patrons on its premises needs to act to avoid liability.

[1] Rodriguez v. Barrita, Inc., 10 F.Supp.3d 1062, 1072-1073 (N.D. Cal. 2014).

[2] 42 USC § 128181(7).

[3] Rodriguez v. Barrita, Inc., 10 F.Supp.3d 1062, 1073 (N.D. Cal. 2014).

[4] 42 USC § 12183(a)(2).

[5] See 28 CFR § 36.406.

[6] 28 CFR 36.402.

[7] DOJ Topic Opinion Letter 772, August 26, 1998 (ECF No. 232-3, Ex. 2.)

[8] 42 USC § 12182(b)(2)(A)(iv).

[9] See 42 USC § 12189(9).

[10] 42 USC § 12182(b)(2)(A)(v).

[11] 42 USC § 12182(b)(2)(A)(iv).

[12] 42 USC § 12181(9).