As a labor and employment lawyer, I am always addressing employment related issues involving the Americans with Disabilities Act (“ADA”). As most know, the ADA is a major labor and employment law that promotes employment opportunities for persons with disabilities. But did you know that the ADA also has provisions that are designed to promote equal access to public accommodations for persons with disabilities? That is another aspect of my ADA practice: defending companies that are sued because there are accessibility issues on their properties that allegedly violate ADA rules.
Recently, the United States Supreme Court announced that they will be deciding a very important ADA accessibility issue. In the many accessibility cases that I have handled, there is always some skepticism about whether the plaintiff legitimately is someone who wants to access the services of a business or property that is sued for failing to meet ADA standards. This skepticism arises because in most cases you have habitual plaintiffs. If you do a court docket search, you will see these plaintiffs are typically involved in a multitude of similar suits. ADA cases are extremely lucrative for lawyers who file them on behalf of clients. Just one ADA violation means that the defendant will have to pay the plaintiff’s attorney’s fees so these cases are easy pickings for lawyers who want to make a quick buck. In fact, in most of the cases I have handled, after the matter is settled, usually very early in the process to reduce the scope of possible liability for legal fees, there is hardly any follow up to ensure that the property owner defendant rectifies the claimed ADA problems. Along with habitual plaintiffs, you often also have the same lawyers filing these suits for the same plaintiff. Like I said, it does make you wonder about the legitimacy of a plaintiff’s visit to a strip mall, or other business, when they claim, as all do, that they are there to legitimately partake of the services and businesses on site.
In the case that is now being taken up by the Supreme Court, the plaintiff (who is disabled) sued a hotel for not following the ADA’s accessibility rules. However, the plaintiff was never a guest of or had any intention of becoming a guest at that hotel. The plaintiff claimed that he was a tester and legally had a right to bring a claim under the ADA to make sure that the hotel met all ADA requirements. This case calls in question a legal concept known as standing. In order to bring a claim, a person must suffer some type of legal harm. Otherwise, you have no standing to sue and bring your case. This case will determine whether a tester plaintiff has standing simply because he is disabled and goes to a public accommodation just to see whether that site follows ADA requirements. This case has huge implications for ADA public accommodation cases. If more is required than just being a disabled person to proceed with a suit and showing up to see whether a business is in compliance with the law, it will likely reduce these kinds of cases, especially if a future standard requires that the plaintiff actually be a real patron of a business to claim legal harm. That would be a welcome result for businesses that face these types of cases each day.
While we wait for the court’s decision, if you own a public accommodation or run a business, you should periodically check to make sure that your business meets all ADA accessibility requirements. Do you have enough handicap parking spots? Are your bathrooms accessible to persons with a handicap? Is your website accessible to persons with a disability? Staying in front of these issues is extremely important because there are so many out there who do nothing but file ADA lawsuits claiming accessibility violations that you do not want your property or business to be the next on someone’s hit list. So, be prepared by taking cautionary steps now to avoid facing these kinds of lawsuits in the future.
