ADA lawsuits against retailers are on the rise — and even though many suits may be without merit, a retailer still has to defend/answer the allegations.
That was the message Joan Stein, one of the nation’s leading authorities on ADA, brought to the SPECS session, “ADA Non-Compliance: Can You Afford It?” at SPECS.
There was a 63% surge in the number of ADA Title III lawsuits filed against public accommodations in 2014 over 2013. California was at the top of the pack, with Florida on its heels. And the game-changer, according to Stein, is that many other states, such as Pennsylvania, New York and Ohio, are catching up.
The ADA celebrated its 25th anniversary in 2015, and, over time, new areas of focus have caught the interest of advocates as technology has created new concerns. The new areas drawing attention include POS (touchscreens, kiosks and the like), ATMs and retail websites.
“Although these areas aren’t written into the ADA Standard for Accessible Design, the U.S. Department of Justice and courts are ruling against business for these elements if they are not usable by individuals with disabilities,” Stein said, adding that the primary disability in question with these elements is visual impairment.
Stein had some advice for the retailers at her session.
“If you have an IT department, talk with them about modifying your website,” she advised. “The lawsuits filed in this area are really ramping up.”
Indeed, the DOJ is putting pressure on businesses to make their websites accessible even while it is drafting proposed regulations for such sites, with the regulations coming out in June.
The bottom line, according to Stein, is to integrate ADA compliance into everything you do.
“If you are remodeling a particular space, for example, you can’t just look at the space, “she said. “You also have to make sure the path of travel to that accommodated space is accessible.”
There has been significant growth in “drive-by lawsuits” focused on exterior areas and parking lots, including, in some case, exterior signage. Such suits, which are filed as class action suits, have become a focus of advocacy groups and lawyers.
“Their next focus will be websites,” Stein predicted.
FINANCIAL IMPACT: DOJ fines have increased, with the first violation now at $75,000. All subsequent ones are $155,000 each. And there is the potential for compensatory and punitive damages.
“And certain states have additional damage awards, Stein added.
For instance, under the California Unruh Civil Right Act, a plaintiff is entitled to recover actual damages and an amount up to three times the actual damages for each violation of the Act.
There are also remediation costs to consider. On average, total costs to comply with ADA standards for barrier removal will run small firms from $82,449 (for a typical restaurant) to $275,375 for a small firm hospital building.
“And remember: There is no grandfathering under the ADA,” Stein said.
Stein offered some simple advice for retailers to mitigate their risk and stay ahead of the curve with regard to ADA compliance:
• Design it right;
• Construct it right;
• Maintain it correctly. For example, don’t let associates move things into the path of travel; and
• Document it.