In recent years, there has been an increase in “drive-by” ADA lawsuits. These lawsuits focus on businesses that are not compliant with the Americans with Disabilities Act (ADA) because their buildings are inaccessible to people with disabilities. These suits have been given the somewhat pejorative nickname “drive-by” lawsuits because plaintiffs have been known to drive around looking for potentially noncompliant business. While some of these cases may be opportunistic, it is still important for businesses to comply with the ADA.
Under the ADA, businesses not only have an obligation to make accommodations to their employees. They also have an obligation to the public. Under Title III of the Act, places of “public accommodation” – private entities that are open to the public and affect commerce – must remove any “architectural barriers” in order to ensure that people with disabilities have equal access to their business. To the extent that such changes are “readily achievable,” businesses must make changes such as:
- ramp installation
- door widening
- handrail installation
- reserved handicap parking
The ADA defines “readily achievable” as “easily accomplishable and able to be carried out without much difficulty or expense.” This is highly fact intensive and requires a case-by-case analysis.
In addition to removal of physical barriers, businesses must also remove “communication barriers” to the extent that doing so is readily achievable. This could include adding braille on elevator buttons or installing flashing alarm lights for the sight and hearing impaired.
There is a common misperception that businesses that existed prior to 1992 (the effective date of the ADA) are “grandfathered in,” and therefore exempt from the requirement to make their facilities accessible to people with disabilities. This is false. All businesses must comply with the requirements of the ADA, regardless of when their facilities were constructed. The myth of a “grandfather clause” can be costly. Not only are noncompliant business required to make structural changes, but they can also be ordered to pay plaintiffs’ attorney’s fees.