On Law


July 8, 2008


Accessibility lawsuits the latest retail rage

Despite its commendable purpose, public accessibility law has been abused by certain individuals, organizations and plaintiffs' attorneys for the purpose of monetary gain. In California alone, a mere handful of individuals have filed over 400 lawsuits each within a three-year period. While states such as California, Florida and Hawaii have seen a significant share of these types of lawsuits, accessibility lawsuits are by no means limited to these states or geographic areas.

Title III of the Americans with Disabilities Act (ADA) requires retail stores and other public accommodations to accommodate disabled patrons, guests and members of the public, to the greatest extent possible. Title III specifies that no individual with a disability may be discriminated against or denied the full use of "goods, services, facilities, privileges, advantages or accommodations" offered by a "public accommodation."

Also, Title III requires that public accommodations, such as retail establishments, remove all "physical barriers" to disabled individuals whenever it is "readily achievable" to do so. The goal is to ensure that a public accommodation provides essentially the same opportunities for access to individuals with disabilities as it does to all other individuals.

The primary reason is that Title III is an easy hammer to pick up, and retail establishments are relatively high standing nails. Title III's interpretive regulations set forth a slew of architectural guidelines, such as how wide an accessible parking space must be. If the parking space doesn't satisfy the minimum width requirements, a technical violation may well exist, and the plaintiff is entitled to injunctive relief (to have the parking space widened) and -- more importantly to litigants -- attorney's fees.

The scope of the legal duty of an owner/operator of a public accommodation to remove physical barriers is determined by the building's construction date. The new construction provision of Title III requires that newly constructed facilities, scheduled for first occupancy after January 26, 1993, must be readily accessible to and usable by individuals with disabilities, to the extent that it is not structurally impracticable.

But if the building was constructed and occupied prior to January 26, 1993, the owner/operator is only required to make those changes to improve access that are "readily achievable." Nevertheless, even as to "old construction," when remodeling areas that are open to the public, such as lobbies, restrooms, parking lots and merchandise aisles, the renovations must comply with the "new construction" standard.

In light of the growing number of Title III lawsuits, a common question for many is what can be done to avoid such litigation. One approach is to consult with legal counsel or an accessibility consultant to identify the existence of any barriers to access at your facility, and prepare and implement an appropriate remediation plan. Remember to pay attention not only to the Title III public accommodation guidelines, but also any applicable state, county or city guidelines. This will help deter potential lawsuits.

In addition, review, and if necessary rewrite, your personnel policies to direct employees to provide necessary assistance to disabled patrons. In the event your facility is sued, retain qualified counsel as soon as possible so that an appropriate litigation and remediation plan can be developed.

As with the prevention of most discrimination-based lawsuits, taking appropriate preventive measures is the best defense against Title III lawsuits. And as a bonus, that may serve to encourage a new customer base.

Hoffman is the managing partner of the San Diego office of Fisher & Phillips LLP, a national law firm that exclusively represents management in labor and employment matters. Hoffman can be reached at chris.hoffman@sddt.com.


July 8, 2008