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By Joan Stein
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Today, 18 years after the Americans with Disabilities Act (ADA) was signed into law, a significant number of facilities covered under this federal law are still being sued for their failure to comply with the standards. A recent report generated by Lexis Nexis documented 204 private ADA lawsuits filed in the federal courts in the month of July 2008 alone. This total does not include cases that are being investigated or litigated by the U.S. Department of Justice (DOJ), the federal agency responsible for enforcement of Titles II and III of ADA.
Why is there so much litigation so long after the law took effect? The answer to that question lies is the basic principles of ADA.
Newspaper articles report complaints about shopping centers, movie theatres, private and public post-secondary educational institutions, restaurants and retail stores. The complaints range from “no accessible parking” to “no accessible restrooms in a restaurant.” The cases range from existing facilities that have not performed “readily-achievable barrier removal” to those that have designed and constructed new facilities (following implementation of ADA) that do not comply with ADA requirements. Disability advocates say that 16 years is long enough — or too long — to wait for access.
When faced with a private lawsuit, it is important to determine whether the allegations are valid. The first step is having a professional ADA evaluation by an organization that understands the differences between building code and enforceable ADA standards.
A side-by-side comparison of the allegations of the complaint and these professional findings is often helpful. If the issues focus on barriers that can be removed (providing compliant parking, re-surfacing sidewalks and curb ramps, etc.), this can help to speed the resolution of the complaint without tremendous time, attention or cost of a legal team. On the other hand, if the professional evaluation provides evidence that areas identified in the complaint are in compliance with ADA, the facility executive has critical information that can be used to negotiate.
A professional ADA evaluation should also include the steps necessary to bring the facility into compliance. For example, whether an item is readily achievable is based on the organization’s resources and the nature of the existing building. If facility executives have not yet done a full ADA evaluation, this report serves as a crucial step in ADA compliance efforts. By following through with the recommendations, with a timeline and budget delineated, a facility executive can often prevent subsequent ADA complaints.
Although the DOJ engages professionals to perform on-site investigations, it is still important for facility executives to have their own set of facts available to assist in any negotiations with the DOJ. The DOJ may also see the effort to perform a complete ADA evaluation as a positive step.
How can facility executives avoid ADA litigation? Truthfully, nothing can guarantee that an organization will not be sued under the ADA. But doing nothing certainly increases the odds of getting sued. When a complaint is filed (either in court or with DOJ), facility executives may not have control over the barrier removal process; it may well be dictated by the courts or DOJ.
Taking proactive steps now will help keep facility executives ahead of that curve. Here are some such steps:
1. If a facility executive performed a comprehensive ADA evaluation of a building previously, that’s good. Now it’s time to take it off the shelf, read it and ask the following questions:
If there are more “no” answers than “yes,” it’s time to get to work.
2. If a comprehensive ADA evaluation of the facility has not been performed, now is the time to do it. Having an outside professional perform the evaluation provides a second set of eyes and professional experience in ADA compliance. The survey process should include:
Some facility executives wonder why they have to do this. There are several reasons. The biggest one is simple: It’s federal law. If an organization that is not in compliance with ADA has not been sued yet, it may be only a matter of time. ADA is not going away.
According to the U.S. Department of Labor, people with disabilities have $175 billion in discretionary income, four times the spending power of tweens (8- to 14-year-olds). An Open Doors Organization study estimated in 2003 that diners with disabilities spent $35 billion in restaurants that year. As baby boomers age, more and more seniors will become disabled as ailments and the natural course of aging challenge their bodies. They will seek out level entrances, wide automatic doors and single-level living as they try to avoid stairs and revolving doors. Surprisingly, families with young children also seek these features. Given that all these people with money are looking for easy access to the businesses they patronize, the market is beginning to change. Making commercial enterprises accessible to people with disabilities is smart business.
Joan W. Stein is president and CEO of ADA, Inc., a national ADA consulting firm based in Pittsburgh, PA.