Lawsuits involving public accommodation under Title III of the Americans with Disabilities Act ("ADA" or the "Act") have proliferated over the past several years. A combination of virtual strict liability for new construction and the availability of attorneys' fees have - to use the words of one federal judge - created a "cottage industry" of firms that seek to rack up "frequent courthouse miles." Moreover, unlike the employment provisions in Title I of the law, Title III applies to all owners, designers, builders, lessors, lessees and operators of public accommodations, regardless of size. Finally, as discussed in Part I of this Article, Title III not only prescribes how facilities must be built and maintained but also provides specific obligations to ensure that individuals with all forms of disabilities receive equal access to goods and services. Although the Act can be daunting to those who suddenly find themselves confronted with a lawsuit or U.S. Department of Justice investigation, businesses can and should take steps to significantly reduce their potential liability.
Before The Fight Is Fought
It will come as no surprise that the most important thing every company can do to limit Title III liability is to determine how the law applies to your company and whether your company is in compliance. The DOJ strongly encourages covered entities to establish procedures for an ongoing assessment of their compliance with the ADA's barrier removal requirements. The DOJ also recommends that providers of public accommodations consult with disability rights organizations to assist in identifying barriers. These efforts should obviously be undertaken only after counsel has been retained to conduct a privileged analysis of the company's current compliance with the law. In addition to avoiding litigation in the first place, self-reviews clearly influence the outcome of litigation that cannot be avoided. Courts frequently cite a defendant's failure to assess its facilities for compliance with the ADA, even though conducting a review does not excuse violations of the Act. A competent audit must consider at least four different areas of the law:
Buildings built or remodeled after 1992 are required to strictly comply with the ADA Accessibility Guidelines. The requirements are specific and include virtually every feature of a building (entrances, service counters, toilet facilities, public telephones) and its surrounding areas (parking lots, sidewalks, signage). These requirements also apply to facilities that have undergone significant renovation or alternation. Older buildings are not "grandfathered" simply because no modifications have been made to the facility. All businesses must remove physical barriers in existing facilities where it is "readily achievable" to do so. If removal is not possible, goods and services must be made available in ways that are "readily achievable."
Businesses must make reasonable modifications to usual practices and procedures when it is necessary to accommodate customers who have disabilities. Businesses are not required to change their policies and procedures in any way that would cause a "fundamental alteration" in the nature of their goods or services, would undermine safe operation of the business, or would cause a "direct threat" to the health or safety of others. Businesses must allow people with disabilities to bring service animals into all areas of the business where customers are normally allowed to go.
Public facilities must ensure effective communication with customers who have vision, hearing, speech, or cognitive disabilities. The type of assistance that is appropriate can vary greatly depending on the type of service provided. While effective communication starts with the proper training of staff, some businesses may require additional resources such as sign-language interpreters or Braille. Video conferencing and other new technologies have greatly reduced the costs for providing interpreters and transcribers when needed.
Businesses that provide transportation to customers as a convenience to support their primary operations (e.g., hotel or car rental shuttle vehicles) must provide equivalent transportation services to individuals with disabilities. The services offered to people with disabilities need to be as convenient as the services offered to other people in terms of schedules or response times, hours of operation, pick-up and drop-off locations, and other measures of equivalent service. The rules are different for companies that provide transportation on a "fixed route" schedule. DOJ has adopted the position that shuttle services that run a continuous fixed route have additional obligations.
Limiting Corporate Liability
Facilities that were built prior to the implementation of the Act do not have to conform with the standards that have been established for new construction. Such facilities are instead required to remove barriers to the extent removal is "readily achievable." The ADA's definition of readily achievable provides that such barrier removal must be undertaken if "easily accomplishable and able to be carried out without much difficulty or expense." The determination of what is easy or without undue expense will depend in large part on whether the analysis takes into account the resources of related companies that have a financial interest in the facility.1 Thus, in addition to looking at the costs and resources of the site involved, the regulations provide that the geographic separateness, and the administrative or fiscal relationship of the site in question to any parent corporation, will be considered when deciding the extent to which the resources of any parent corporation should be considered.
The ability to reduce corporate liability by carefully structuring corporate relationships is perhaps best demonstrated in the context of litigation directed at holding franchisors directly liable for their franchisees' ADA violations. The complex nature of these relationships, and the law, is such that courts examining the exact same franchise operation in different parts of the country have come to completely different findings on the question of franchisor liability. While some courts have concluded that liability should only be found where the franchisor meets the traditional standards for a responsible party under the Act (owner, operator, lessor or lessee), other courts have focused more heavily on the degree of control the franchisor has over the facility. This latter approach is not unlike that which has been applied in defining "employer" when assessing franchisor liability in employment disputes. Franchise documents must therefore be drafted in a way that clearly emphasizes that the review and approval of facilities and operations is solely for the purpose of determining compliance with corporate system standards, and is not for determining whether the facilities satisfy the legal requirement of the ADA.
Keys To Effective Litigation
The defense of any Title III complaint depends largely on recognizing and implementing effective litigation strategies. For example, challenging a plaintiff's standing to file suit can often be an effective means for getting a claim dismissed. In federal court, a plaintiff must establish standing by showing: (1) injury in fact; (2) that is fairly traceable to the defendant's conduct; and (3) that that injury is likely to be redressed by the requested relief. The first and third prongs of this test often present a problem for plaintiffs. Under Title III, plaintiffs can only request prospective relief. The ADA authorizes the court to issue an injunction to correct ongoing violations, but it does not authorize damages for past violations. A plaintiff must therefore demonstrate that an award of prospective relief will redress a past violation. To the extent remedial action reduces the possibility that a violation will occur in the future, a defendant may be able to defeat standing by demonstrating that there is not a substantial likelihood that a violation will occur in the future. This defense can be particularly effective when the alleged violation can be addressed through modifications to training and procedures, rather than the elimination of a physical barrier. The modification need not include the specific change sought by the plaintiff, but must instead be directed at demonstrating that the changes are such that there is not a "substantial likelihood" plaintiffs will encounter the same violation.
Corrective action can also be a powerful tool in defeating one of the prime reasons why Title III litigation has become so pervasive. The ADA contains a provision that explicitly authorizes recovery of attorneys' fees and other costs of litigation. The term "prevailing party" has historically applied an analysis called the "catalyst theory," whereby a plaintiff was entitled to fees if the lawsuit brought about a voluntary change in the defendant's conduct. In short, if filing the lawsuit proved to be the catalyst for the defendant's compliance, the plaintiff was deemed to have prevailed even though the case never proceeded to judgment.
In Buckhannon Board and Care Home, Inc. v. W. Va. Dep't of Health and Human Res ., 532 U.S. 598 (2001), the Supreme Court significantly narrowed the availability of attorneys' fees by rejecting the catalyst theory. The Court reasoned that the term "prevailing party" was a term of art that, according to Blacks Law Dictionary , meant a "party in whose favor a judgment is rendered" Id. at 603. Attorneys' fees are no longer available if a defendant voluntarily eliminates the challenged conduct, even if the change was brought about by the lawsuit. Thus, a company that voluntarily eliminates the alleged violation by implementing procedures that are workable from the company's perspective can essentially eliminate the availability of fees. This forces plaintiffs' lawyer who are motivated by the recovery of fees to realistically assess whether the remedial efforts already undertaken by the company warrant a quick settlement. The fact that a plaintiff may have identified a violation is no longer sufficient to warrant a plaintiff's counsel demand for changes that are not justified under the law.
Make ADA Good For Business
As much as every company would prefer to address the needs of its customers without government intervention, Title III of the Americans with Disabilities Act is now an important part of the legal landscape. One important aspect of the Act is that it permits the proactive company to adopt it own strategies for ensuring that individuals with disabilities obtain equal access to goods and services. It also provides experienced counsel with opportunities to allow companies to reassess compliance and reduce liability both before and after litigation is filed. In the end, the ability to adopt effective strategies to avoid and handle claims is essential for business and the community, and will become only more important as affluent and aging baby boomers join the ranks of individuals who need assistance when demanding access to public accommodations.
1 Tax incentives are available to businesses to partially offset costs for removing barriers, hiring interpreters, producing documents in alternate formats, or taking other steps to improve accessibility. Businesses may not charge people with disabilities extra to recover the costs of complying with the ADA.
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.