I’m frequently asked two questions by business owners and managers when it comes to ADA compliance and lawsuits. The first question is, “what type of businesses get sued most often?” The second question is, “how can I avoid becoming one of those businesses?” Like many things, the answers to these questions can be complex and involve a lot of variables. Certainly, for example, businesses that operate in industries that deal heavily with the public, such as retail, hospitality, and banking, are often frequent targets based on the volume of people that come to a business’s facilities to use their services. Although there is no way to “ADA-proof” a facility, paying close attention to the impression your business gives at a first glance can significantly reduce the likelihood of claims.
“Curb appeal” or how attractive a store or business appears from the street is a frequently overlooked component of a strong defense to ADA public accommodations claims. There are certainly many situations where a plaintiff arrives at a store to shop and only thinks of an ADA claim when they encounter an unexpected barrier to access. As many business owners know, however, many ADA claims also result from serial litigation (i.e. cases where the same plaintiff and/or same law firm files dozens of ADA lawsuits in the same city or area). In such cases, disability rights attorneys work with individuals (in many cases on a regular and repeated basis) to determine suitable targets for such lawsuits. This process can be as straightforward as having an individual with a disability ride or drive down a street in a business or retail district and search for business with likely violations. The individual then attempts to enter the facility or use its services and, voila, an ADA claim is born.
Many serial ADA plaintiffs will not stop at every restaurant, store, bank, or hotel in a retail area. Rather, they are looking for likely violations. Case in point:
Store 1 – The parking lot has relatively new paint, few cracks in the blacktop, all parking signs are straight, and any lights or lit signs work properly.
Store 2 – The parking lot has a few lights out, has not been painted in years, and some signs are missing or bent.
When choosing a likely target for an ADA lawsuit, even relatively cosmetic problems (such as in the case of Store 2 above) will make it far more likely that a serial ADA plaintiff will stop at a business. Once there, he or she will be in a position to identity other potential violations, both inside and outside the facility.
The ADA: Where to Focus
This post is not intended to suggest that business owners should avoid legal obligations under the ADA’s public accommodations requirements, or that all ADA plaintiffs are serial plaintiffs. Rather, I’d encourage owners and managers of public accommodations to take the ADA’s regulatory guidance to heart — including the guidance indicating that businesses should begin their ADA assessments by focusing on readily achievable “fixes” to access barriers, particularly where major changes are cost prohibitive. Although not an exhaustive list, some common (and easy) corrective actions that can improve a business’s ADA “curb appeal” include:
1) Checking that parking lot spaces are properly marked and the paint is visible;
2) Ensuring that all necessary signs (including disabled parking signs) are present and standing straight;
3) Moving any obstacles that block or impede doors or sidewalks (such as merchandise and signs);
4) Checking that any building or parking lot lights work;
5) Repairing or patching any significant cracks or holes in the parking lot; and
6) Making sure a customer can locate store personnel quickly without having to maneuver through narrow aisles.
Taking these steps may not prevent all lawsuits, but they may reduce the risk of your business becoming a target for ADA claims.