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AMERICANS WITH DISABILITIES ACT (ADA)
FREQUENTLY ASKED QUESTIONS
Can a business be sued again if it has already settled a previous ADA lawsuit?
What is the Americans with Disabilities Act (ADA)?
Congress passed the ADA in 1990, explaining that its purpose was to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities and to provide clear, strong, consistent, enforceable standards addressing such discrimination. The ADA was signed into law on July 26, 1990 by then-President George H.W. Bush, and one year later, the Americans with Disabilities Act Accessibility Guideline (ADAAG) was enacted, which provided very specific requirements for achieving ADA compliance. The 1991 ADAAG was eventually replaced by the 2010 ADAAG, which is currently in force. The ADA and the ADAAG are intended to create inclusion for the disabled, and to eliminate segregation and exclusion on the basis of disability.
Who is considered disabled under the ADA?
A person is disabled under the ADA if they have an impediment (or are considered, or have a record of an impediment) that impairs one or more major life activities. Major life activities are defined to include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. This is not an exclusive list and whether a person has a disability may have to be discernible on a case by case basis. A disability is permanent, and so an injury or other condition that is expected to heal or clear up within a reasonable time is not a disability in this context.
What types of business are required to comply with the ADA?
Title III of the ADA applies to places of public accommodation (business that are open to the public), including (but not limited to) restaurants, hotels, theaters, doctors' offices, pharmacies, retail stores, museums, libraries, parks, private schools, and day care centers. The law applies to any private entity that owns, operates, leases, or leases to, any of these place of public accommodation. For this reason, businesses that own real estate leased to another business that is in violation of the ADA are often sued as a result of their tenant's ADA violations. A notable exception to covered businesses are private membership clubs and religious organizations, which are exempt.
What physical features does the ADA require businesses to have?
On July 26, 1991, the first Accessibility Guidelines, which had been drafted by the US Access Board, became the implementing regulations applicable to the ADA. In other words, the ADA required businesses to comply with the 1991 ADAAG. The ADAAG contained many of the accessibility features that have now become ubiquitous across the US, including accessible parking, ramps, accessible restrooms, and many other features that have better integrated the disabled into the fabric of American society. The 1991 ADAAG was replaced by the 2010 ADAAG, which contains additional requirements. But in areas not covered by the 2010 ADAAG, the 1991 ADAAG continues to be applicable. Other requirements are evolving through cases filed by ADA plaintiffs, most notably the field of website compliance, as to which no official guidelines have yet been published.
Are business websites and apps required to comply with the ADA?
The answer largely depends on the type of business. If the business is a corollary to a "brick and mortar" place of public accommodation, then the answer is almost certainly yes. For example, stores that have websites selling the same goods as in their store should without question comply with the ADA. Some courts have also held that streaming services, pizza delivery services, and other similar online services are subject to the ADA. Compliance with the ADA on a website is not an area that has been regulated yet, but there seems to be a general consensus that compliance with WCAG 2.1, which is a standard for coding online platform so that they are perceivable and usable by the visually impaired.
What are the rules on service animals?
Service animals are an issue that have gained significant attention in recent years. Under the ADA, a service animal is an animal that is specifically trained to perform a task that assists a disabled person, for example, a seeing eye dog, a dog that alerts a deaf person of critical sounds, or a dog that can detect and warn of an seizure that is about to take place. Service animals must be allowed within all places public place of accommodation unless they present a safety issue (for example, they can be banned from areas that must remain sterile). Emotional support animals are no longer considered service animals and do not have to be allowed within a private business (note that this is not the case under the Fair Housing Act, and condominium associations do have to allow emotion support animals even if they have a no pet policy).
How is the ADA enforced?
There are two ways in which the ADA is enforced, first, through enforcement actions brought by the Department of Justice, and second, through private lawsuits filed by disabled litigants. If you are reading this, you are probably most interested in the latter (actions by private individuals). A disabled person can file a lawsuit under the ADA to remedy barriers of access (ADA violations) that they encounter at any place of public accommodation, as long as the barrier applies to their disability. The ADA does not allow for anything other than remediating (fixing) the ADA violation as well as legal fees and costs, but there are various state laws that compliment the ADA (such as California's UNRUH civil rights act and New York State and City human rights laws, which do allow for the recovery of damages. Most ADA cases are settled, resulting in remediation of the barriers, but some cases are not, particularly where the barriers do not exist, have been fixed, or where other defenses may be available.
What is the purpose of an ADA lawsuit?
The purpose of an ADA lawsuit is to obtain ADA compliance. The ADA also allows for the recovery of attorneys fees and costs. There are also various state laws, most notably in New York and California, which allow for the recovery of monetary damages by any person who succeeds on an ADA claim.
Who can file an ADA lawsuit?
An ADA lawsuit can be filed by any disabled person who encounters a barrier to access applicable to their disability. In other words, a person who is unable to walk can sue if they encounter steps at a restaurant with no ramp, but cannot sue if there is no braille menu. The person filing the lawsuit is also not limited to barriers that were actually encountered. If discovery on the case reveals barriers inside a restaurant, then the disabled would-be patron (who could not enter because there was no ramp can include a claim to remedy those barriers. The disabled person must also prove that they have "standing," which means that they actually encountered a barrier and have a reason to want it removed. Absent those factors, a court may decline to proceed with the case.
Are there any defenses?
Yes. There are many defenses. For example, mootness is a defense based on the principal that a court cannot force a party to fix something that is already fixed. In other words, since all an ADA plaintiff can get is an order to fix the violations, if the violations are already gone, there is nothing for a court to award and the case is moot, and may be dismissed. It is also an absolute defense to provide that a requested change is not readily achievable (i.e. that it is not accomplishable without undue burden or expense), or that it is not technically feasible (for example, if ADA compliance cannot be achieved in an old building without knocking down load baring walls). Depending on your particular case, various defenses may be available.
How are ADA lawsuits resolved?
Usually by settlement, but sometimes in other ways. If there is a basis for a motion to dismiss, it may be filed, or in some cases the matter is taken through trial. If a settlement can be reached that ends the matter on the most efficient terms possible, that is most likely the way to go. But if there are available defenses and a will to assert those defenses, then a motion to dismiss, for summary judgment, or some other defensive motion or position may be appropriate. This is very case specific.
Is there a limit to the number of ADA lawsuits that one person can file?
No, not really. Many litigants have filed hundreds of lawsuits. While this fact might strike anyone who is unfamiliar with civil rights litigation as strange, the fact is that only a small number of very active plaintiffs have brought much of the litigation that has caused widespread ADA compliance. However, whether any particular case is appropriately brought by a repeat litigants must be evaluated on a case by case basis.
Can a business be sued again if it has already settled a previous ADA lawsuit?
Yes. At the latest, the 2010 ADAAG had to be complied with by March 15, 2012, and so any outstanding ADA violations may still result in an ADA lawsuit, even if one has been brought in the past. The best way to avoid an ADA lawsuit is to comply with the ADA, and a lawsuit should be an opportunity for a business owner to better understand the law, make sure the business complies, and thereby avoid any future ADA issued.
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