More than 14 years ago, Congress passed, and the first President Bush signed, the Americans with Disabilities Act. Its purpose was noble. The Act was intended to prohibit discrimination against disabled persons and integrate them more fully into society. However, because the abilities of disabled persons are different from non-disabled persons, redressing disability discrimination is a fundamentally different task than redressing other kinds discrimination.

For example, take public access to a retail establishment. A retailer can eliminate race discrimination simply by providing full and equal access, privileges and services to all customers of any race on a non-discriminatory basis. To eliminate disability discrimination at the retail establishment, however, a retailer often must do much more. It must affirmatively accommodate the disabled. And, the form of the required accommodation is exhaustively detailed in the ADA Accessibility Guidelines (or "ADAAG"), the federal regulations implementing the ADA.

Thus, under ADAAG, a certain number of parking spaces must be reserved for disabled persons. The spaces must be at least 96 inches wide, and they must be accompanied by a sign that cannot be obscured when a vehicle is parked in the space. There must be a ramp from the parking lot to the store entrance. The ramp cannot have more than an 8.3 percent slope. If the door entrance into the store has a door closer, it must take at least three seconds for the door to close from 70 degrees to 3 inches from the latch. Once in the store, the disabled person must have access to merchandise and a cash register counter. The cash register counter must be at least 36 inches long and be no more than 36 inches high. These requirements are illustrative only. There are other requirements involving the path of travel to the cash register counter, merchandise, pay telephones, toilets, sinks, paper towel dispensers, water fountains, exits, and the list goes on.

Despite the good faith of many retailers, virtually every place of public accommodation probably violates the ADAAG's exhaustive and detailed requirements in some minor way. This typically is so for three different reasons. In some cases, the retailer owns or leases an old building and is either unaware of the law's requirements or mistakenly believes they do not apply. In others, the architect fails to include all of ADAAG's requirements in the building plans. Finally, a building contractor sometimes makes a mistake in turning an architect's plans into reality. In one case, a U.S. District Court lamented the fact that the fire alarms at a new facility were hung too low under ADAAG and faulted the public accommodation's "seeming inability to find a carpenter who can nail straight."

Unfortunately, if a retailer fails to comply with any of ADAAG's requirements - regardless of fault, the severity of the violation or the importance of the requirement to disabled persons -- the retailer can be sued for disability discrimination. The lawsuit can result in seemingly minor structural changes to the facility: Lengthening a counter by an inch, for example. Or rebuilding a ramp with a 9% slope so that it has only an 8.3% slope. These remedial measures, even if minor, still can be costly. In many states, the lawsuit also can result in an award of damages and, in some cases, triple damages. But, perhaps most significantly, a retail establishment can be required to pay the other side's attorney fees and costs when it is sued for disability discrimination and does not prevail.

Because minor ADAAG violations are commonplace and because there is a significant upside to plaintiff's attorneys in suing over minor ADAAG violations, litigation against public accommodations such as retailers has exploded. For example, during a recent eight-week period, more than half of the newly filed cases in the U.S. District Court in San Diego alleged ADA access violations. During the same period, nearly 100 new ADA access cases were filed in U.S. District Court in Los Angeles. ADA access lawsuits typically settle because public accommodations quickly realize that it is cheaper to settle than to litigate the issue of whether, for example, a paper towel dispenser in the public bathroom is too high.

Still, it is better for public accommodations not to be sued in the first place. By following a few simple recommendations, a retailer should be able to at least limit the likelihood of being sued for violations of the ADAAG.


1.    Do An ADA Access Audit

Retailers should retain an ADA access expert to survey their facilities. This expert should be able to locate most (if not all) ADAAG violations at a facility. Remedying the violations identified by the expert should limit a retailer's exposure to future lawsuits.


2.    Focus on Access to the Building

Plaintiff's attorneys seeking to sue retailers often identify potential defendants simply by driving by the facility and examining the parking lot and accessibility to the facility. If a retailer has studiously complied with ADAAG's requirements concerning disabled parking spaces, appropriate signage and access to the building, a plaintiff's attorney simply may drive away in search of more promising targets.

Accordingly, when remedying ADAAG violations, a retailer's first priority should be on disabled persons' ability to park their cars and access the facility.


3.    Accommodate Disabled Patrons

Most disabled persons do not want to sue public accommodations. They simply want to use the facility. If, for some reason, complete ADAAG compliance cannot be readily achieved, make sure the facility still is usable to the disabled. Make sure disabled persons can use the restrooms. Make sure there is aisle space sufficient to maneuver a wheelchair. Make sure they can get into and out of the building. If for some reason a part of the facility is inaccessible or a disabled person is having some difficulty, help the customer in a respectful way.

Good customer service and a practical response to accessibility problems may not stop a plaintiff's attorney, but they should earn retailers the good will of their disabled patrons, and they should reduce the likelihood that a disabled patron actually will feel compelled to seek out an attorney on his or her own to sue the retailer.


4.    Strategic Considerations

Resolving one ADA access lawsuit does not mean that a retailer cannot be sued for the same thing a second time. Some retailers have, therefore, taken an aggressive approach to defending ADA access suits in order to deter future lawsuits by the same plaintiff's attorney.

In addition, if a lawsuit is certified as a class action, it can result in the resolution of all potential ADA access claims. This is because all members of a particular class (for example, all persons who use wheelchairs) are represented in a class action suit.

However, many plaintiff's attorneys do not bring their ADA access lawsuits as class actions because they lack funds. Others do not want the responsibility of representing an entire class of disabled persons. Nevertheless, some sophisticated plaintiff's attorneys specialize in ADA class action litigation, and retailers should not dismiss out-of-hand the possibility that a class action ADA access lawsuit may ultimately provide some benefit by resolving all of the potential ADA access claims once and for all.

By taking a proactive approach and implementing an ADA compliance program as described above, retailers should be able to limit their exposure to expensive, repetitive and time-consuming litigation over strict compliance with ADAAG.

If you would like to receive legal reports and updates more quickly, by e-mail, click here and fill out the mailing list form.

For more information about the issues covered in this report, please contact Chris Baker in our San Francisco office at 415-369-7201 or at cdbaker@thelen.com or contact your Thelen attorney. For more information about Thelen's Construction and Government Contracts Department, click here.





©2005 Thelen Reid Brown Raysman & Steiner LLP