Lawsuits alleging discrimination against public accommodations under Title III of the Americans with Disabilities Act ("ADA" or the "Act") involve many of the elements in-house lawyers hate. First, there is the sympathetic plaintiff who is "simply" fighting to obtain equal access to a public facility or service. To make matters worse, many of the Title III claims filed today do not involve a single plaintiff. They are instead filed as class action lawsuits by disability advocacy groups who seek to use such litigation to draw attention to their cause. These cases are not directed at one location, but instead demand that costly modifications be made to all of the defendant's facilities. Those cases that are directed at one facility are often filed by "career plaintiffs" who file lawsuit after lawsuit to exploit the Act's attorney's fees provision.
Although the volume of Title III litigation continues to dramatically grow, companies can take steps to greatly reduce potential liabilities. Simply put, being proactive on Title III compliance can be good for business and good for the community. This two-part article sets out the theories underlying many of the most common types of claims currently being filed under the Act and explores various strategies for effectively managing such litigation. Specifically, Part I provides an overview of the ADA and its statutory development, and reviews the legal standards that apply to three of the most frequently litigated provisions of Title III. Part II of this article, to be published next month, will examine the "nuts and bolts" of Title III litigation.
Under Title III, "[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation ." The Act also applies to commercial facilities and private entities that offer "examinations or courses related to applications, licensing, certification, or credentialing for secondary or postsecondary education, professional, or trade purposes." Despite this broad definition of what constitutes an accommodation, the obligations under Title III can largely be distilled down into three distinct requirements: (1) removal of architectural barriers; (2) auxiliary aids and services; and (3) the reasonable modification of policies, practices, and procedures.
Removal Of Architectural Barriers
The ADA requires public accommodations and commercial facilities to remove architectural barriers that inhibit the mobility of persons with disabilities. This obligation extends equally to all private entities, be they lessor, lessee or operator of a public accommodation. This barrier removal requirement only applies to buildings constructed before January 26, 1993. Buildings constructed after that date must comply fully with the Americans with Disabilities Act Accessibility Guidelines (ADAAG), which detail the specifications to which buildings must conform.
Generally, any deviation from the ADAAG constitutes an architectural barrier. Owners of existing buildings are not, however, necessarily required to bring the building into compliance with ADAAG. Rather, they must only remove barriers where removal is "readily achievable." The ADA defines readily achievable as "easily accomplishable and able to be carried out without much difficulty or expense." For example, where a restroom is accessible by climbing one or two steps, the Justice Department has stated that ramping the steps would be readily achievable in most cases. But ramping an entire flight of steps would not likely be readily achievable.
Although the statute does not describe in detail which modifications are readily achievable, Department of Justice regulations list five factors that must considered in deciding this issue: (1) the cost and nature of the action; (2) the financial status of the site involved, the number of individuals employed at the site, the effect on expenses and resources, and legitimate safety requirements for safe operation; (3) the geographic separateness of the site to its parent corporation; (4) if applicable, the overall financial resources of the parent corporation, the overall size of the parent corporation, and the number and type of its facilities; and (5) if applicable, the type of operation of a parent corporation. The "cost" of removing the barrier includes not only the cost of the removal itself, but also any lost revenue that results from the removal. The amount of lost revenue thus includes loss of business revenue attributable to closing the facility, if required to make the modification, and, particularly in retail stores, from reducing the amount of space available to display merchandise.
Auxiliary Aids And Services
To ensure the full and equal enjoyment of goods and services provided by public accommodations, the ADA requires public accommodations to provide disabled individuals who are limited in their capacities to communicate with auxiliary aids and services. Title III broadly defines "auxiliary aids and services" to include "qualified interpreters or other effective methods of making aurally delivered materials available to individuals with hearing impairments; qualified readers, taped texts, or other effective methods of making visually delivered materials available to individuals with visual impairments; acquisition or modification of equipment or devices; and other similar services and actions."
While public accommodations are encouraged to consult with disabled persons who require such aids or services, they are free to furnish the auxiliary aid or service of their choosing provided that the selected aid or service enables "effective communication." In addition to being flexible, Title III's auxiliary aid and service obligation is not absolute. Rather, the statue places two major limitations on this obligation. A public accommodation is not required to provide auxiliary aids and services if either a "fundamental alteration" or an "undue burden" would result. Under Title III, a "fundamental alteration" is a modification that is so significant that it alters the inherent characteristics of the goods, services, and accommodations offered or provided.
Between January 2000 and September 2006, the DOJ entered into at least 57 major formal settlement agreements concerning auxiliary aids and services.1 The majority of these involved a public accommodation's failure to provide a deaf individual with a qualified sign language interpreter or, more generally, an entity's inability to provide their deaf patrons with "effective communication." More than half of these investigations involved a healthcare provider and/or facility.
Reasonable Modifications Of Policies, Practices And Procedures
The final major obligation under Title III requires places of public accommodation to reasonably modify services to ensure their full and equal enjoyment by disabled individuals. Specifically, Title III provides that "a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary" constitutes discrimination "unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations."
The scope of what constitutes a fundamental alteration has been the subject of extensive state and federal litigation.2 The Supreme Court's decision in PGA Tour, Inc. v. Martin is arguably the most significant decision interpreting "fundamental alteration" under Title III.3 In PGA Tour, Casey Martin, a talented golfer who suffers from a degenerative circulatory disorder, sued PGA Tour, a sponsor of professional golf tournaments, for preventing him from using a golf cart during the third round of a competition. Despite Martin's formal request to use a golf cart and his detailed submission of supporting medical records, the PGA Tour refused to review the records or waive its walking rule for the third stage of the tournament. The District Court entered a permanent injunction requiring the Tour to permit Martin to use his golf cart during the competition, and the Ninth Circuit affirmed. One day later, the Seventh Circuit came to the opposite conclusion and held that the nature of the game "would be fundamentally altered if the walking rule were eliminated because it would remove stamina"4
Though a modification of tournament rules could constitute a "fundamental alteration" if the change impacted an essential aspect of golf or if the alteration provided a disabled player with an advantage, the Court found neither of these arguments to be persuasive. In affirming the Ninth Circuit, the Supreme Court ultimately held that requiring a golf course to waive its walking rule for Martin does not fundamentally alter the game of golf.
The need to modify policies, practices and procedures typically does not raise questions of fundamental alteration. Between January 2000 and September 2006, DOJ entered into approximately 40 settlement agreements involving the "reasonable modification" requirement under Title III. More than half involved a public accommodation's refusal to permit a service animal's entry in a place of public accommodation. These claims could have readily been avoided by simply educating employees on the obligation and conditions under which to admit such animals. The other claims varied greatly, requiring public accommodations such as stores, schools, care rental companies and museums to modify their regular business policies and procedures in order to ensure that persons with disabilities could enjoy equivalent access to goods and services.
The Reality Of Litigation
Clearly the best strategy is to prevent litigation by understanding the obligations discussed above. But life and litigation are never that simple. "Private attorneys general" (i.e., plaintiffs' lawyers) are systematically reviewing corporate America's compliance with Title III of the ADA and the volume of lawsuits continues to grow steadily. Moreover, the Department of Justice is aggressively identifying and prosecuting provisions of the Act, frequently in ways that were not anticipated by even those companies that have vigilantly sought to comply with the law. Part II of this article will review how Title III claims are typically prosecuted, and sets forth a number of strategies that have proven effective in reducing liabilities while simultaneously creating goodwill in the community. 1 The Department of Justice produces status reports that cover selected ADA activities of the Department on a quarterly basis. The status reports consulted for the purpose of this analysis cover those produced between January 2000 and September 2006, and is restricted to litigation and formal settlement agreements. Department of Justice Americans with Disabilities Act: ADA Settlements and Consent Agreements, www.ada.gov/enforce.htm#anchor201570 ("Status Reports").
2 Many lower federal court decisions have addressed what constitutes a fundamental alteration in the context of athletic and academic programs. See, e.g., Kuketz v. Petronelli, 433 Mass. 355 (Mass. 2005) (discussing whether an athletic club should be required to modify its racquetball competition rules to permit a wheelchair athlete to have two bounces rather than one); Bowers v. National Collegiate Athletic Association, 974 F. Supp. 459 (D.N.J. 1997) (examining whether the NCAA is obligated to exempt a learning-disabled student athlete from certain requirements); and White v. Creighton Univ . , 2006 U.S. Dist. LEXIS 56500 (D. Neb. Aug. 11, 2006) (evaluating whether a medical school must modify its admissions criteria and accept a second year student who allegedly suffers from depression).
3 PGA Tour, Inc. v. Martin, 532 U.S. 661 (2001).
4 Olinger v. United States Golf Assn., 205 F.3d 1001 (2000).
Todd Bromberg, a Partner in the law firm of Wiley Rein, has over 15 years of experience litigating a wide range of business-related disputes, with an emphasis on accessibility of public accommodations pursuant to the Americans with Disabilities Act. He can be reached at 202.719.7357. The author acknowledges the excellent assistance of Wiley Rein summer associates Jonathan H. Gold and Tessa Capeloto.