What To Do if an Accessibility Complaint is Filed
Plaintiffs filed 4,965 federal ADA public accommodation lawsuits in the first six months of 2018, according to law firm Seyfarth Shaw’s mid-year analysis. This is compared to 7,663 ADA Title III lawsuits filed in all of 2017. If filings continue at the same rate, 2018 ADA Title III lawsuits will be nearly 10,000 – a 30% increase over 2017.
The best defense against ADA complaints is a good offense.
Assessing your facilities to determine ADA compliance and putting a plan in place to address issues is the best strategy in avoiding ADA complaints and potential litigation because it establishes a plan for compliance.
Accessible parking and entrances
The first priority of barrier removal is providing accessible parking and an accessible entrance. Some litigants may look for compliant accessible parking at facilities to determine if they should further investigate for other accessibility issues on the property. When highly visible exterior areas, such as parking, are fully compliant, your facility will be less likely to draw attention from passers-by.
Public access to goods and services
Public access to goods and services and restrooms are other areas to consider when evaluating exposure to complaints, depending on the nature of a facility. Compliant restrooms would be a priority for highway rest stops, while service counters and paths of travel in a convenience store affect public access to goods and services and are a higher priority.
If you are served with a complaint, there are some basic steps you may follow to help reach a resolution:
Step 1: Verify if the issues in the complaint are valid.
Completing a thorough facility review for compliance will provide an accurate and useful picture of issues, if any, on your property. This makes it easier to identify allegations in the complaint that do not apply to your facility, as is sometimes the case with grievances raised by litigants who follow a pattern of repeatedly filing similar complaints at numerous properties.
Step 2: Determine what standard was used by the plaintiff.
A complaint may include issues that are safe harbored and may not be valid, depending on the date the facility was constructed or altered. Often, existing conditions should be evaluated using the “readily achievable” standard instead of a new construction standard.
Step 3: Determine if there are other issues not listed on the complaint that may put you at risk.
Often litigants will request a full inspection of the property, using an expert to conduct an in-depth ADA assessment, sometimes leading to the addition of other sites to the complaint. Having your own assessment allows you to identify any (potential) accessibility barriers, develop a remedial compliance plan, and take steps to remove barriers before they are grounds for a complaint.
Having information about your facility’s accessibility status helps prepare you to respond to complaints. It also enables you to develop a proactive plan. A plaintiff’s goal when filing a complaint should be to bring about changes that make the facility accessible, and if you are entering the discussion with a plan to do so, we believe the stage is set for a more agreeable resolution.