Legislation is under consideration at both the federal and the state level to address a dramatic increase in litigation against places of public accommodation alleging violations of the Americans with Disabilities Act (ADA) and the Minnesota Human Rights Act (MHRA). Many have questioned whether the motive underlying these lawsuits is a legitimate interest in increasing accessibility or an opportunistic desire to make money.
Over the past year, more than 100 public accommodation lawsuits have been filed in Minnesota alone, many targeting small business for alleged violations of the ADA and the MHRA. Similar lawsuits have also been filed in California, Florida, and Texas.
In many of the lawsuits, whether the alleged violation exists or truly impedes accessibility for the disabled is highly questionable. For example, one of the lawsuits targeted a small business with an accessibility ramp that was just one degree off from what was required. Another lawsuit alleged that a restaurant did not have accessible seating in the front of the restaurant, but the small business owner strenuously argued that accessible seating was available. In virtually every case, however, the litigants have demanded a settlement in the amount of $5,000 to $10,000, which is far less than the cost of litigating. The result is that many small business owners give in to the demand and pay the settlement even though there may be a valid defense on the merits and even though no actual damages may have occurred.
A number of individuals and organizations that strongly support the public accommodation provisions of the ADA and MHRA question the tactics and motives of these lawsuits. The City Pages reports that some disabled individuals believe that the lawsuits are undermining the effectiveness of the laws and giving a bad name to legitimate efforts to address accessibility issues. According to WCCO, the Minnesota State Council on Disability disapproves of the strategy underlying the lawsuits as well.
To address these problems, legislation is under consideration at both the federal and state levels that would require that before a party files a lawsuit for a public accommodation violation under the ADA or MHRA, the party would first have to: (i) provide a prelitigation notice of the violation to the place of public accommodation; and (ii) allow the public accommodation a period of time (e.g., 60–120 days) to fix the problem before filing a lawsuit. If the public accommodation fails to fix the problem, only then would a lawsuit be permitted. The intent behind the legislation is to create a process for addressing accessibility problems without forcing small businesses to choose between paying a settlement of questionable merit or incurring even greater costs to defend themselves.
In the meantime, one step that small business owners can take to protect themselves is to review their public spaces for compliance. Some good resources for small businesses to consult regarding their accessibility obligations include the following:
- The ADA Guide for Small Businesses;
- The 2010 ADA Standards for Accessible Design; and
- Guidance on the 2010 ADA Standards for Accessible Design.
Takeaway: If you feel strongly about the proposed legislation to require a prelitigation notice and a waiting period before a public accommodation lawsuit can be filed under the ADA or MHRA, you should contact your federal or state representatives to let them know how you feel.