In recent weeks, we have seen a surge in Illinois of private plaintiff lawsuits filed under the public accommodation provisions of the Americans with Disabilities Act of 1990 (ADA). Public accommodation lawsuits have been common for nearly a decade in some states, such as California and Florida, but these cases have been filed with increasing frequency in Illinois and other states.
Some plaintiff’s law firms appear to have identified this area of the ADA as a target, and sue places of public accommodation in part because the law may permit the recovery of attorneys’ fees. For instance, on June 2, 2015, lawyers filed eight different lawsuits against Chicagoland area hotels naming the same disabled plaintiff and reciting the same violations against each hotel. These types of public accommodation lawsuits typically name the disabled person, often someone who is wheelchair-bound, as the plaintiff in multiple lawsuits. Sometimes, an individual plaintiff may be joined by, or at least supported by, an advocacy group. According to the federal courts’ PACER service, Plaintiff’s lawyers have filed more than 2,000 ADA public accommodation lawsuits this year alone.
Hotels are not the only primary target, unfortunately. Lawsuits are also being filed against restaurants, retail stores, and shopping centers. As with the recent spate of Chicago-area lawsuits, the typical complaint filed with the court will allege that the plaintiff visited the facility but encountered physical “barriers” to his or her full enjoyment of the facility itself or the available goods and/or services. For example, the plaintiff may allege that there was inadequate handicapped parking; that access into and out of the building was difficult or impossible because of steep inclines, lack of curb cuts, or narrow doorways; that goods or services inside the facility were difficult to reach because of counter or shelf heights; or that it was difficult or impossible to use the public restroom because of inadequate maneuvering space or inaccessible toilet stalls. The lawsuit may even disclose that the plaintiff is simply acting as a “tester” whose sole purpose in visiting the defendant’s premises is to find purported ADA violations.
The lawsuit typically will seek an injunction requiring the public accommodation to remove or alter the alleged physical barriers, and ask the court to award other damages, expert fees, and attorneys’ fees for the plaintiff’s lawyer who brought the lawsuit. The plaintiff named in the most recent cases in in the Northern District of Illinois has filed a whopping 763 separate ADA public accommodation lawsuits across the country since November 2013.
These lawsuits rely on Title III of the ADA, which prohibits discrimination by privately owned places of “public accommodation” and prohibits certain types of discrimination by “commercial facilities.” Title III includes both direct, overt discrimination against a disabled individual by a public accommodation but also includes: (1) the failure to “design and construct” new facilities so that they are “readily accessible to and usable by individuals with disabilities”; (2) where alterations are made to a facility, the failure “to make alterations in such a manner that, to the maximum extent feasible, the altered portions of the facility are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs”; and (3) in “existing facilities” the failure to remove architectural (physical) barriers to access for the disabled, and the failure to provide appropriate alternative services to the disabled when physical barriers cannot be removed. Which of these three standards will apply depends on the date that the facility was constructed and first occupied, or when and what types of alterations are made to a facility. Whether a facility is considered accessible is determined by reference to the “ADA Accessibility Guidelines for Buildings and Facilities” (ADADG) adopted by the United States Department of Justice. The ADAAG provides detailed requirements and architectural standards for virtually all aspects of a public accommodation, including parking lots, access and entrances to the facility, paths of travel within the facility, restrooms, drinking fountains, access to goods and services in the facility, and safety features.
Obviously, the easiest way to avoid a public accommodation lawsuit is to ensure that your facility complies with the ADAAG standards to the greatest extent feasible. If you are not currently renovating or constructing a facility, an ADA accessibility study or audit prepared with the guidance of counsel may help identify potential problems before you face a lawsuit and the court-enforced timelines to remedy them.
If your business falls victim to a lawsuit under Title III of the ADA, in addition to retaining competent counsel, be prepared to answer some basic questions to determine what standard applies and whether your facility meets it:
- Was the facility constructed for first occupancy after January 26, 1993?
- Has the facility been substantially renovated since January 26, 1992?
- Do any operating agreements, construction contracts, or other legal agreements provide you with indemnity?
- Is the facility out of compliance with the ADA accessibility requirements, in the way a lawsuit claims?
- Finally, if there are ADA accessibility issues, what would it cost to remedy them? Are the renovations “readily achievable” as required under the ADA?
The wave of ADA public accommodations lawsuits does not show signs of breaking anytime soon. Preparation before they hit is the best protection.