Is Your Privately Owned Business in Compliance with the Americans with Disabilities Act?

By: Alisa N. Carr, Esq.

In the past six months, a Pittsburgh based law firm has filed in excess of 50 class action lawsuits in federal court asserting common violations of Title III of the Americans with Disabilities Act (“ADA”) by banks, retail stores, shopping malls and grocery stores. If you operate a privately owned business in the United States that is open to the public and qualifies as a “public accommodation” under the definition of the ADA, your business could be exposed to costly litigation if your property is not in compliance with the applicable ADA standards.

The ADA requires all public accommodations, such as stores, hotels, banks, restaurants, doctors’ offices, day care centers, private educational facilities and theaters, to maintain (in operable working condition) facilities and equipment that are required to be readily accessible to and usable by individuals with disabilities. A public accommodation is required to reasonably modify its policies, practices or procedures, if necessary, to avoid discrimination.

Discrimination under the ADA includes the failure to remove physical “architectural barriers” in existing facilities where such removal is “readily achievable.” Typical architectural barrier litigation concerns the amount, width and marking of handicap parking; the slope of parking lots; entrances; the existence and design of curb cuts; the height of check-out counters; accessibility to dressing rooms and washrooms; and sufficient clearance between merchandise racks. Removal of an architectural barrier is readily achievable if it is “easily accomplishable and able to be carried out without much difficulty or expense.” What is readily achievable is determined on a case-by-case basis in light of the resources available.  The obligation to remove barriers, when achievable, is a continuing one which may change as a business grows or circumstances change. Whether a facility meets the “readily accessible” requirement is defined, in part, by the ADA Accessibility Guidelines (“ADAAG”). Compiled by the Department of Justice and incorporated into the Code of Federal Regulations, the latest version of the ADAAG (2010) became mandatory on March 15, 2012 and establishes the technical standards required for “full and equal enjoyment” of a public accommodation.

To prevail on a discrimination claim under Title III, a plaintiff must prove that:

(1)     He/she is disabled within the meaning of the ADA;

(2)     The defendant is a private entity that owns, leases, or operates a place of public accommodation; and

(3) The plaintiff was denied public accommodations by the defendant because of his/her disability.

Liability is imposed upon any person who owns, leases (or leases to) or operates a place of public accommodation that discriminated against an individual on the basis of a disability. To impose liability, the barrier does not need to completely preclude the plaintiff from entering or using the facility; it need only interfere with the plaintiff’s full and equal enjoyment of the facility. While a private plaintiff may only seek injunctive relief in the form of remediation and reasonable attorneys’ fees, these damages can be very costly.

The attorneys at Leech Tishman have broad experience with ADA litigation defense, construction practices and property management. In addition, our attorneys counsel owners of public accommodations, including, property developers, shopping mall owners, national retailers, business owners and financial institutions, on best practices to avoid ADA Title III litigation including a review of applicable standards and the ADA’s safe harbor provisions.

Alisa N. Carr is a partner in the Litigation Practice Group. She can be reached at 412.261.1600 or acarr@leechtishman.com. Please feel free to contact Alisa with any questions regarding how Title III of the ADA may impact your business.

Leech Tishman is a firm dedicated to providing full-service commercial legal services to individuals, businesses, and institutions. We combine a deep understanding of our clients and their businesses with skilled legal counsel to find solutions. We offer legal services in alternative dispute resolution, bankruptcy & creditors’ rights, construction, corporate, employment, energy, environmental, safety & toxic torts, estates & trusts, government relations, insurance coverage & corporate risk mitigation, intellectual property, international legal issues, litigation, real estate, and taxation. Leech Tishman has offices in Pittsburgh, PA, Chicago, IL, New York, NY, Los Angeles, CA and Wilmington, DE. For more information call 412.261.1600 or visit www.leechtishman.com.