Ansell Grimm
October 3, 2023
By Seth M. Rosenstein
Twenty-five years after its passage, the Americans With Disabilities Act (ADA) has quite literally reshaped the landscape for disabled individuals, allowing them to participate more fully in society and avail themselves of the same facilities, services, and opportunities as everyone else. However, the ADA’s impact on the lives of millions of Americans has been matched by its impact on countless public-facing business and property owners who have had to modify their physical and online presence, practices, and properties to comply with the act’s accessibility requirements.
Title III of the ADA prohibits discrimination against people with disabilities by businesses open to the public. The ADA requires that businesses open to the public provide full and equal enjoyment of their goods, services, facilities, and websites and has provided detailed requirements for how companies must do so. However, satisfying those requirements can be tricky, even for the most well-intentioned and diligent businesses. If a person with disabilities wants to enter a store, visit a website, or obtain services but cannot do so because the business has not complied with the ADA, that person can file a lawsuit for such shortcomings, leading to costly and disruptive litigation that can cause both financial and reputational harm.
Self-Appointed “Testers” File Thousands of Shakedown ADA Suits Each Year
But the risk of ADA-related litigation doesn’t just come from individuals who were actually prejudiced or denied access or services. For all its benefits, the ADA has also become a tool for serial plaintiffs and legal counsel, many of whom have never attempted and never intended to patronize a business, to file questionable, if not frivolous, lawsuits designed solely to shake down the business for a quick payout.
These nuisance ADA suits have cost American businesses millions of dollars. According to one analysis, ADA lawsuits have increased by 320% since 2013. Many plaintiff’s law firms file hundreds of cookie-cutter ADA lawsuits each year, often utilizing the same serial plaintiffs for each action. One person can visit multiple businesses or websites in a single day solely to identify even the slightest accessibility transgressions in order to generate claims.
Small businesses bear the brunt of this abusive litigation, as serial plaintiffs – often labeling themselves as self-appointed ADA compliance “testers” – specifically target small businesses because they typically have limited means to defend themselves. Given the potential damages, including the payment of exorbitant attorneys’ fees, settlement is not just the path of least resistance; it may be the only path for a small business that wants to avoid a potentially devastating judgment.
So, what can small business owners do to reduce the risk of finding themselves in the crosshairs of a serial ADA plaintiff?
Hire a Certified Accessibility Specialist To Conduct a Compliance Assessment
You can’t fix a problem you don’t know you have. Perhaps the single most important thing you can do to limit exposure from accessibility lawsuits is to conduct a complete accessibility assessment and review of your facilities and online presence. A Certified Accessibility Specialist (CASp) can evaluate your property or internet presence, identify specific accessibility issues, and then supply you with the compliance requirements specific to your facility and website. Similarly, if you are planning new construction or alterations, a CASp can review your building plans and specifications to ensure the resulting construction will be ADA-compliant.
Once you have a complete picture of all accessibility issues with your facility or website, the next step is working to remove barriers and impediments to access. “Barrier removal” is one of the key elements of the ADA, and whether you need to make modifications or alterations to remove any identified barriers depends on whether such changes are “readily achievable,” which is defined “as easily accomplishable and able to be carried out without much difficulty or expense.” This is a very fact-specific analysis that depends on the complexity and costs involved in removing the barrier as well as the size and financial condition of the business. A CASp can assist in identifying barriers and also advise as to whether removal is “readily achievable” under the ADA.
Keep Your Eye on the Supreme Court
In its new term starting this month, the U.S. Supreme Court will decide whether self-appointed “testers” who do not suffer actual harm because of an alleged ADA violation have standing to sue under the act. The Court’s decision in Acheson Hotels, LLC v. Laufer will resolve a split between federal appellate courts on the issue and could have a seismic impact on the viability of ADA nuisance suits against small businesses if it rules that such individuals do not, in fact, have standing to sue. The importance of the case can be seen in the fact that 47 organizations have filed amicus briefs with the Court, advocating both for and against tester standing.
Hire Experienced ADA Defense Counsel
Before reflexively giving in to an ADA plaintiff and settling a claim, small business owners should consult with experienced counsel who can evaluate the complaint and determine the best path forward. As noted, many complaints filed by “testers” are cookie-cutter and may contain boilerplate allegations of deficiencies that do not actually exist. It is often the case that an aggressive defense of the claims – particularly when the claims are frivolous – benefits both the business or property owner defending the action, as well as the greater community by deterring vexatious litigation primarily focused on lining counsel’s pockets.
If you have questions about your ADA obligations and protecting against accessibility lawsuits, please contact Seth Rosenstein at Ansell.Law.
