The Americans with Disabilities Act (ADA) became law more than 15 years ago with the goal of remedying discrimination against individuals with disabilities. Similarly, California adopted the Unruh Civil Rights Act, which provides that any violation of the ADA shall constitute a violation of state law. Under this law, money damages are awarded "for each and every offense . . . up to a maximum of three times the amount of actual damage but in no case less than $4,000, and any attorney's fees that may be determined by the court." With the passage of these laws however, over 14,000 lawsuits have been filed against businesses in California alone. In fact California has 40 percent of the nation's ADA lawsuits but only 12 percent of the country's disabled population, according to U.S. Rep. Ken Calvert, R-Corona. Unfortunately, most of ADA lawsuits target small businesses and as one can imagine, more than half of them (56%) are filed by a small number of plaintiffs and lawyers
It is true that the aim of this law is to protect individuals with disabilities and to ensure that they receive the same rights and opportunities as others, but unfortunately, there have been frivolous abuses of this protection by many individuals. It is more unfortunate that business property owners and tenants often undermine the severity of these lawsuits and misunderstand their legal obligations to make their property accessible to everyone.
Most businesses operate as tenants of a property and they assume that the obligations to make the premises in compliance with the laws and accessible to those with disabilities is owed by the landlord. Other times, business owners assume that any violation of ADA must be intentional in order to be held accountable. The reality however, is that any business owner, regardless of their status as a tenant or landlord, and regardless of their intent, can unknowingly be in violation of ADA regulations.
Additionally, most businesses believe that new commercial buildings already have accessible doorways, ramps and restrooms so that individuals with disabilities can access them fully, yet both federal and state laws require businesses to do significantly more. These laws require any private property that is open to the public (e.g., hotels, restaurants, retail stores, etc.) to remove structural barriers that prevents equal access by all "where such removal is readily achievable." Even where removal of a barrier is not readily achievable, federal and states laws require businesses to provide access "through alternative methods if such methods are readily achievable." Even if local building officials have approved the premises, aggrieved individuals can bring private lawsuits to enforce the ADA and, if successful, obtain injunctive relief to require changes. In addition, they may be awarded their attorney's fees.
As a result of these private enforcements and repeated lawsuits or threats of lawsuits, many businesses in California have been forced to shut down, lay off employees, pay out large settlements, or change locations. Many of these businesses have little to no financial resources or time to fix the problem and become compliant.
What can you do to protect your business from ADA lawsuits and litigious “Civil Rights Activist”?
Know your obligations under the law: All business property owners and operators who invite members of the public onto their premises need to conduct an audit of their premises to determine if they are in compliance with accessibility regulations
Obtain an evaluation from a Certified Access Specialist (CASp): discover potential barriers to access your premises. Business owners can also contact the U.S. Access Board for guidance and information at (800) 872-2253 or at www.access-board.gov
Develop a plan to implement changes necessary based on the CASp report: review and analyze the CASp inspection and evaluate your options for making your premises in compliance with the laws.
If you have been served with an ADA lawsuit, take the lawsuit seriously: not only do you have to pay a minimum statutory penalty of $4,000, you have to pay your attorney and the attorney of the plaintiff.
Finally contact a lawyer! The requirements of ADA and Unruh Civil Rights Act can be overwhelming and confusing. If you need assistance, feel free to reach out to one of the dedicated attorneys at Thakur Law Firm to assist you with your legal problems.
If you have any questions or would like more information about how to protect your business, please contact Thakur Law Firm at firstname.lastname@example.org