5 Things Retailers Need to Know: How to Avoid ADA Litigation
By Sarah Bell, Special Council at Pryor Cashman.
The Americans with Disabilities Act (ADA) was enacted in 1990 to provide civil rights protections to individuals with disabilities similar to those provided to individuals on the basis of race, color, sex, national origin, age, and religion. The ADA guarantees equal opportunity and equal access for individuals with disabilities in public accommodations, recreational facilities, employment, transportation, state and local government services, and telecommunications.
Retailers are prime targets of ADA litigation. This is because retailers, in particular, are businesses used by customers on a daily basis: grocery and clothing stores, coffee shops, drug stores, shoe stores. The list could go on and on. When a retailer is not accessible, a disabled customer is unable to avail him or herself of its resources. That means, for example, that a wheel-chair bound customer could not get into a store with a step at its entrance or may not be able to purchase goods at counters that are too high. That could also mean that a blind customer could not read a traditional menu or a deaf customer may not be able to easily order a cup of coffee. For retailers, failing to comply with the ADA dramatically increases potential liability in – and the potential cost of – an ADA lawsuit. Here are five things retailers should know about ADA litigation:
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Access Is Not Optional
The ADA was enacted in 1990. That means that the ADA has been law for over 25 years. And while the DOJ may not enforce the ADA with the regularity of some other laws (perhaps due to the vast number of businesses in the United States), the number of private enforcement actions has skyrocketed. The ADA is, and at least at the moment, still the law and violating any of its thousands of provisions increases a retailer’s potential liability in a private enforcement lawsuit or DOJ enforcement action.
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ADA Litigation Is Very Expensive
The most frequent method of enforcing the ADA is through private lawsuits. That is no doubt due to a provision in the Act which provides for “reasonable” attorneys’ fees to the prevailing party (plaintiff’s attorney). In turn, such provision for fees appears to motivate most plaintiff’s attorneys to litigate the suit as much and as long as possible. Defending an ADA lawsuit thus quickly becomes an expensive proposition. At a minimum, a business needs to hire and pay its own counsel, design and pay for the required modifications, likely pay the plaintiff’s attorneys’ fees in a settlement, and perhaps also indemnify its landlord and/or defend its tenants. Voluntary compliance is a far better choice.
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Getting In Is The First Step (pun intended)
The most obvious ADA violation is a non-compliant entry. For example, one or more steps leading to a doorway, an uneven or cracked doorway saddle or a steep ramp could prevent a disabled or wheelchair bound individual from entering the business. A disabled individual need look no further for his or her lawsuit then the entrance if it is not compliant.
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When You’ve Got To Go…
Public restrooms are a Pandora’s Box of potential accessibility violations due to the sheer number of items in any given restroom that must be accessible. That means that, among other things, there must be the proper number of accessible stalls, as well as at least half a dozen other items inside the stall or restroom, including the location of the toilet, presence and location of grab bars and the size and layout of the toilet stall or room.
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Trying On At Home Is Not A Solution
Just because you like to make purchases and take them home to try on in the comfort of your own home, doesn’t mean everyone has to do it that way. If your business has a fitting room, it must be accessible
Contributed by Sarah E. Bell , Special Counsel at Pryor Cashman in New York and co-chair of the law firm’s ADA Defense Group.