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Drive-By ADA Lawsuits: Tips From Anderson Cooper's 60 Minutes

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By George Khoury, Esq. on December 12, 2016 11:57 AM

The Americans with Disabilities Act seems to consistently face criticism from the business community and public at large. Despite being a 26-year-old law, businesses new and old are frequently found to not be in compliance with the ADA's requirement that all businesses be wheelchair and disability accessible. Rather than apologetically coming into compliance, businesses all too frequently try to blame the disabled people and their attorneys that are out there enforcing the civil rights law.

A recent episode of 60 Minutes featured a segment about how the ADA's technical requirements, and private enforcement mechanism, impact small businesses. There are a couple important points that were made during the segment that small business owners should understand. Unfortunately, curiously missing from the segment was the information needed for business owners to learn how to come into compliance for free.

#1 Lesson to Learn: Drive-By Lawsuits Are Legal

If you take away one lesson from Anderson Cooper's segment, then it should be this: if your business is in violation of the ADA's technical requirements, you can be sued at anytime without warning. In fact, the ADA does not even require a plaintiff to step foot, or wheel, onto a business's property. It is absolutely within a disabled person's right to see from the outside that a business is not accessible, and file suit because they are not able to access the business.

The "drive-by" lawsuits are generally over disabled parking, which is way more important than one might suspect. You see, if a parking spot doesn't have the legally required clear space, a person in a wheelchair may not be able to exit, or return to, their vehicle. If a disabled parking space is on a slope, a disabled person could be risking their life by wheeling onto that surface (wheelchairs are very susceptible to tipping on inclined surfaces, which can lead to severe injuries).

#2 Lesson to Learn: There's No Excuse for Not Complying

As Anderson Cooper learned, the ADA has been the law of the land for over 25 years, and at this point, there is no reason why any business should be out of compliance. As John Wodatch, the former chief of the disability rights section of the DOJ explained, the number of lawsuits is paltry in comparison to the number of people who suffer from disabilities. The specificity in the ADA requirements matter. Being an inch or two off might not seem like a big deal, but to a wheelchair user, a door that is one inch too narrow might mean they can't get through the door.

While businesses may feel victimized by ADA lawsuits, it is clear that the US Congress, in passing the ADA, found that barriers to access for disabled people are discrimination. While the ADA itself does not provide a plaintiff with monetary damages (unless they actually suffered a financial harm), some state laws, like California's Unruh Civil Rights Act, do provide for money damages. Irregardless, the ADA does allow for attorneys to be paid their fees by violators for representing plaintiffs if they are successful.

Compliance Can Be Free

There is a silver lining for business owners that are not in compliance with the ADA: tax incentives. The federal government provides an annual tax credit to businesses that spend money on ADA remediation. There are some state and local tax incentives that business can take advantage of as well. This means that with careful planning, a business can come into compliance, and receive tax credits for the costs.

If you have questions about technical compliance with the ADA, you can call the Department of Justice's free, confidential hotline, at 1-800-514-0301, where anyone can call and ask questions. You should also consider contacting a business lawyer in your area.

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