How Disability Access Lawsuits Impact Businesses

By David Goldman

[Originally published in the Oakland Business Review, June 2004]

Lawsuits by persons with disabilities are on the rise, and businesses of all sizes are being targeted. Persons with disabilities must be provided equal access to businesses open to the public. Equal access became a national issue when the United States Congress passed the Americans With Disabilities Act of 1990, (the “ADA”), which provides injunctive relief and attorneys’ fees in lawsuits successfully brought to require equal access to business facilities and services.

California took the ADA one step further in the California Unruh Civil Rights Act and allowed money damages when businesses deny equal access to their facilities and services. The minimum damages to be awarded were increased from $1,000 to $4,000 effective Jan. 1, 2002. Now, a significant financial incentive exists for individuals with disabilities to sue California businesses when equal access is not provided. Not surprisingly, lawsuits increased dramatically. Disabled individuals and their attorneys have systematically isolated and sued California businesses. Bay Area court records reveal hundreds of lawsuits filed by the same few disabled individuals. These lawsuits seeks a minimum of $4,000, attorneys’ fees, injunctive relief and, oftentimes, punitive damages for much larger amounts. California businesses must become proactive to avoid these costly lawsuits.

Businesses are not grandfathered. Miscon-ceptions exist regarding whether or not businesses must make modifications to their premises. Many believe that as long as no major remodeling has occurred, they are “grandfathered in,” and no obligation to remove architectural barriers to full access exists. While it is true that remodeling can “trigger” related disabled access alterations, businesses that provide goods or services to the public (hotels, restaurants, retail stores, etc.) must still make their services and facilities fully accessible whenever it is “readily achievable” (easily accomplished without much difficulty or expense). Further, even when removal of architectural barriers is not readily achievable, “alternative methods” to gain access usually must be provided. For example, if a ramp cannot be installed at the front of a store to allow wheelchair access because of insufficient space, an accessible buzzer may be required to alert a business to unfold a portable ramp.

First steps to take.
When architectural barriers prevent full access, businesses still have an obligation to take steps to improve access. Priorities must be given to removing barriers to access. The first priority is access into the business itself. Does your business have a step at the front door that prevents wheelchair-bound individuals from entering? Does your business have appropriate signs to advise that disabled access is available? These barriers to equal access must be your first priority.

Next, businesses must focus on creating an accessible path of travel within the business, followed by access to the goods and services themselves. A portion of counters must be low enough to enable wheelchair-bound individuals to be served. Bathrooms and public telephones must be designed to accommodate persons with disabilities if such facilities are made available to able-bodied customers. Businesses should make these access improvements when readily achievable.

Avoiding lawsuits.
Examine your business premises. Can persons with disabilities, including wheelchair-bound or visually impaired individuals, fully access and utilize your services and facilities? Take advantage of free public information and guidance, such as the United States Department of Justice Access Hotline at (202) 514-0301. You can also find ADA accessibility guidelines online at www.accessboard.gov and by calling a related telephone hotline at (800) 872-2253.

Landlords and tenants must carefully review their leases. Commercial leases typically require tenants be responsible for complying with all applicable laws, including the ADA. Determine who is responsible for required alterations under your lease. Ask experienced legal counsel to review your insurance policies to determine whether your insurance company will pay for a lawyer if someone files a disability access lawsuit. If a professional designed the business premises, the design work was required to comply with ADA regulations.

A few simple steps taken now may minimize your risk of being sued and avoid costly legal problems. More important, your business will gain access to a community of disabled individuals willing to purchase your goods and services.