In a time of recession-fueled layoffs, an explosion in employment litigation, and dwindling corporate profits, employers have a new challenge: ADA public accommodation lawsuits.
For some employers, especially those in California and Florida, such lawsuits are nothing new. Meanwhile, employers in other states, such as those in the Carolinas, have seen relatively few of these lawsuits over the past few years. Unfortunately, plaintiffs’ lawyers and law firms exclusively specializing in such suits are setting up shop in a number of previously uncharted areas, and the accompanying spike in litigation is startling.
Title III Overview
Employers are most familiar with Title I of the Americans with Disabilities Act (ADA). Title I prohibits discrimination or harassment against qualified individuals with a current or past disability or who are “regarded as” disabled. Title I also requires employers to “reasonably accommodate” a qualified disabled applicant or employee in certain circumstances.
Title III of the ADA does not address employment directly, but sets forth a number of architectural, structural and other guidelines that apply to certain physical facilities that include places of employment. As noted in Department of Justice Guidance:
For example, Title III applies to, among others, places of public accommodations such as shopping centers, gas stations, libraries, grocery stores, theatres, restaurants, hotels – essentially any facility that conducts business or is open to the public with some enumerated exceptions. Title III also applies to certain commercial facilities (e.g., office buildings, factories, warehouses) that engage in certain building alterations after January 26, 1992, and new construction after January 26, 1993. Thus, depending on the circumstances, a given structure may contain both commercial facilities and places of public accommodation covered by Title III.
Title III Enforcement
As a means for implementing Title III, the ADA Accessibility Guidelines (ADAAG) were established by the U.S. Department of Justice at the direction of Congress when Title III of the ADA was enacted. These Accessibility Guidelines provide architectural standards for everything from water fountains to ATMs to stairwells, just to name a few.
Title III and the ADAAG further provide two mechanisms for enforcement: (1) Department of Justice enforcement actions; and (2) private lawsuits by individuals who are “subjected to discrimination or who have reasonable grounds for believing that they are about to be subjected to discrimination.” While monetary damages are relatively limited under Title III, injunctive relief is available to ensure future ADA compliance.
The problem – at least from an employer’s perspective – is another form of relief afforded to prevailing private litigants in Title III suits: attorneys’ fees.
Drive-By Plaintiff Actions
Not surprisingly, the availability of attorneys’ fees has spurred a number of law firms and lawyers who specialize in public accommodation lawsuits. These lawyers generally collaborate with a disabled individual who travels from facility to facility – at times, hundreds of miles from their home – to “test” each facility’s respective ADA compliance. If even a borderline violation is discovered, these individuals (known as “testers” or as one court put it “drive-by plaintiffs”) then become plaintiffs in Title III lawsuits.
In most cases, the individual plaintiff purports to represent all disabled individuals, and, many times, will be joined by a supposed non-profit that claims to also represent the interests of disabled members of the community. These non-profits – with seemingly altruistic names like “Access-4-All” or “Disabled Patriots of America” – are seasoned plaintiffs in their own right.
As an example, over the course of the past 12 months in North Carolina, a single individual has filed 36 Title III lawsuits. These lawsuits come on the heels of at least 50 other lawsuits filed by the same individual in other jurisdictions. Of the North Carolina lawsuits, 18 were filed in the Western District, 13 in the Eastern District, and five in the Middle District. The plaintiff is represented by the same lawyer in each of the 36 cases.
Once a “tester” discovers a supposed violation, the strategy is the same. A complaint is filed in federal court and, only after that, a settlement demand letter is sent to the named defendant. The substance of the demand is not only a request to cure the supposed ADAAG violations, but a request for a significant monetary amount representing the purported attorneys’ fees for which a defendant could eventually be liable. In most instances, Title III lawsuits are settled quickly for fear of increased costs, after which the “tester” and his or her attorney split the proceeds.
What’s An Employer To Do?
The question of course becomes, “What can an employer do to protect itself from being targeted in such suits?” Among other actions, employers should consider:
- Analyzing their public profile and the potential risks of being targeted in Title III strike actions.
- Analyzing the extent to which they are or are not covered by Title III.
- Conducting an internal, privileged audit of their compliance with the ADAAG rules.
Unfortunately, even where covered entities do everything they can to ensure that their facilities are generally in compliance with the Accessibility Guidelines, plaintiffs can still file suit based on gray areas in the ADAAG. In some cases, suits have even been filed based on non-compliance with the American National Standard Institutes Standards (ANSI), in spite of the fact that such standards (which are at times more stringent that the ADAAG) are explicitly inapplicable to Title III claims.
When such actions occur, a Title III defendant needs to be prepared to take a proactive approach in defending its interests, including the engagement of counsel specifically experienced in handling such cases. Otherwise, a lack of knowledge when responding to claims in this area can lead to unnecessary fees and, possibly, a higher than necessary settlement amount where compliance issues do in fact exist.
For assistance in reviewing your current ADA compliance practices or training human resources, facilities and other managers on the requirements created by the ADA, please contact the author or any member of the McGuireWoods Labor & Employment or Employee Benefits teams.