Every year, across the United States, thousands of lawsuits are filed that compel compliance with the Americans with Disabilities Act, most to ensure that persons with mobility disabilities could have equal use and enjoyment of businesses in our community. While these lawsuits are often the key to community access for persons with mobility impairments, these suits have been criticized by the business community. I have been asked every question that could possibly be asked by both persons with disabilities and business owners.
This month, I will try to provide a better understanding of the rights and obligations of each may be necessary to understand the issues of how to bring a suit for a person with a disability, and the best way for a business to defend itself. Next month, you will learn the efforts undertaken by Disability Independence Group to streamline the process to promote full inclusion of persons with disabilities with the cooperation of the business community.
FREQUENTLY ASKED QUESTIONS (FAQ)
After practicing Disability Rights Law since 1998, These are the most common questions potential clients ask me when they would like to enforce their rights. If you have any others, please email me. Here are a few of the FAQs:
1. What is discrimination under the ADA?
Discrimination, under the ADA, is when a person with a disability does not enjoy a full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation, which includes most businesses with a physical location. This includes:
- Policies and procedures that screen out or treat a person with a disability differently from anyone else, unless such policies are necessary;
- Failing to provide auxiliary aids and services, such as interpreters for the deaf, or Braille for the visually impaired;
- Failing to remove architectural barriers to access that are readily achievable or constructing new facilities in an accessible manner.
The ADA is a comprehensive law, and has many regulations, as well as guidance which provide more information as to what is an architectural barrier and the requirements of a public accommodation to comply with the law. For more information, see http://www.ADA.gov.
2. I have been discriminated against, why can’t I get damages under the ADA?
Because Congress said so. The ADA is one of the only civil rights acts that do not provide damages for the aggrieved person, unless the action is brought by the Department of Justice. The result of the lawsuit is usually a settlement which provides for the removal of the barrier, and your attorney’s fees and costs. However, there are some other laws which may allow damages:
- If the public accommodation is a place of lodging, entertainment, or food service establishment, there may be a monetary remedy under the Florida Civil Rights Act;
- If the entity receives any federal financial assistance, such as receipt of Medicaid, Medicare, or federal student grants, it may be liable under the Rehabilitation Act of 1973;
- Counties, such as Miami-Dade, have county ordinances which provide for damages after an administrative process.
3. What do I need to prove to bring an action under the ADA?
Primarily, you need to show that there is a barrier to access in a public accommodation. In addition, you need to intend to visit the public accommodation in the future and there must be a probability that you will suffer the discrimination when you return. Also, you must be willing to go through the federal court litigation process, which includes disclosing a lot of information about your life and disability, and undergo questioning under oath, mediation, and possibly a trial. There is always a risk that you may lose, and when you do so, you may be liable for costs, and if the case has no basis in law or fact, you may be liable for fees.
4. I really need to have an intention to go back to a place that discriminated against me?
Yes. Not only must you intend to go back, there must be a probable date. For example, Disability Independence Group is currently appealing a case where the trial court stated that a boy with ulcerative colitis, and had his colon removed, did not have a case against his local hospital and the specialty children’s hospital because, though it was possible, it was not definite that he would go back for inpatient treatment at a hospital despite his condition. While in many circumstances, its simple to state that a person would go back to a supermarket or restaurant that discriminated against them and they had to sue.
5. Why would anyone go through all of this trouble to sue for access if they received no money and had to spend so much time to fix a place that did not care enough to be accessible?
Someone needs to take a stand for what is right. After 25 years of the existence of the law, there may have been hundreds of persons who have faced similar barriers and decided that they were not going to bother. There have been people that have accepted segregation as a way of life. However, with segregation, there are less opportunities with employment, housing, and community participation
FAQ for Businesses about ADA Title III Lawsuits:
Currently, DIG does not represent business owners in lawsuits, but we always appreciate the opportunity to speak to business owners about how to be more accessible and inclusive for their customers with disabilities. But when they are sued, these are my most common questions:
1. Why me. Why did I get sued?
There are two kinds of suits – a suit by an advocate whose mission is to make the world accessible or a person who this is his or her first suit or one of a few. For the person who does not have a mission, the reason is that the person was treated so horribly by the public accommodation that he or she is horribly angry and wants to ensure that the same treatment never happens to anyone else. The professional advocate notes several barriers to access, primarily starting at inaccessible parking and entrances.
In a recent Eleventh Circuit Court of Appeals decision where it upheld an advocate’s rights to uphold his rights as an advocate to uphold the law, the dissent in the Court of Appeals stated:
The Plaintiff is a serial litigator. The misfortune of his disability does not make him less so. Plaintiff has been a party to 170 cases in the Southern District of Florida and 101 in the Middle District. His travels up, down, and across the byways of South Florida, doggedly in search of a grievance to call his own, are worthy of a Carl Hiassen plot. Seeking injunctions, costs in every variety, and monetary grist for the mills of his attorneys’ offices (the wheels of which surely grind exceeding expensive), this plaintiff is doubtless a force with which many a small business will reckon.
In as much as the dissent meant this in a derogatory way, most advocates would view this description (with the exception of calling a disability a “misfortune”) as a badge of honor. This is a person that should have no personal stake in obtaining equality and community integration for the entire community of persons with disabilities.
2. This professional plaintiff has filed hundreds of cases. He has never been to my business. This is EXTORTION! The attorney is a bottom-feeder hack! I want to sue them back for fees!!
OK. Let it all out and tell it to your psychologist. This is an almost 25 year old law, and you should not need a personal invitation to integrate the disability population into your business. Ring, ring – this is your wake-up call. Get it done. The only way that you are going to prevail is if the plaintiff does not have a disability (Yes, it has happened before), or if the plaintiff did not know his attorney filed the suit (again, yes this has happened before). Even if he has not been to your business, he would need to prove that (1) he has knowledge of the barriers, and (2) he has an intention to go to your business in the future.
3. Oh man, the attorney’s fees are adding up. They gave me a settlement, should I just sign it and pay their fees and move on? Better yet, should I just agree to pay them and do nothing at all?
NO NO! Please don’t do that. The best thing to do is to hire a lawyer, and if the case involves any construction work, a trusted architect or contractor. More likely than not, if you sign a settlement without any advice, you will be required to do modifications that are not required by the law, which will cost much more than your immediate fees. If you negotiate without doing modifications, you will still be open to another suit. Your goal in resolving a case under the ADA is to become compliant with the law, and not only to settle the lawsuit. It may be more expensive on the front-end, but it is cheaper in the long run.
4. Can I get sued again?
You cannot be sued again if your business meets the architectural guidelines of the ADA. However, if your business was constructed or altered prior to 1993, then you need only to make modifications that are readily achievable, which is defined as easily accomplishable without much difficulty or expense. This may be less than the architectural guidelines, but the extent of the modification will be up for debate. So, there is always a chance.
5. How do I avoid being sued?
That’s the wrong question. The right question is – How can I be more inclusive and welcoming for my customers with disabilities? Persons with disabilities includes approximately 20% of the population, and are a major part of our economy and your business. Most persons who are currently able-bodied have friends, co-workers, and family members with disabilities. YOU probably have a person in your family that has a disability and need an accommodation. As such, the number one issue is always an attitude change. If you have a good attitude and treat persons with disabilities as valued customers and cater to their needs, you may not get sued. Ensure that your aisles and fixtures are placed where people in wheelchairs could reach them, teach employees to ask ALL customers if they want assistance. Read and review the business briefs published by the Department of Justice at ADA.gov.
Second, in Florida, and in most states, the current building code includes an accessibility code that uses the ADA as its floor. Call in your friendly neighborhood contractor and tell them that you want to be in compliance with the accessibility code. If you are doing some renovations, make sure that the renovations comply with the ADA or local accessibility code. If not, make a schedule of modifications to be done, starting with the parking and access into the facility, along with the low cost modifications, and then to the more expensive modifications. For businesses with less than 30 employees or less than one million in gross receipts, the IRS permits a disability access tax credit which allows a maximum of $ 5,000 of tax credits per year for expenditures related to ADA compliance