When the Americans with Disabilities Act (ADA) was signed into law in 1990 by President George H. W. Bush, disability rights advocates hailed the legislation as a giant leap toward ensuring a barrier-free society. While most states, including Illinois, had already enacted accessibility laws, the ADA provided a civil and federal enforcement scheme that expanded the earlier Rehabilitation Act of 1973 to ensure that businesses, new construction and existing properties made the maximum accommodation to the disabled public. Although 13 years later, the law has become an integral part of American society and businesses, it has also given rise to a rash of litigation by plaintiff’s attorneys, disability rights activists and not-for-profit organizations.

While many ADA lawsuits are genuinely concerned with accessibility for the good of the disabled public, the ADA has also become an abused tool serving special interest agendas. At risk by such abuse is the credibility of the ADA and the accessibility rights movement in the eyes of businesses on the receiving end of unexpected lawsuits. Class action suits are also common. A disability rights organization recently declared an annual 50-lawsuit goal. According to the Daily Business Review, a Miami legal publication, six not-for-profit corporations and various individuals have filed more than 600 federal accessibility suits in southeast Florida alone. Nationwide, major retailers, restaurant chains, movie theater chains and small businesses have been sued in what are referred to by opponents of the suits as “drive-by lawsuits.”

Two provisions of the ADA have contributed to the rise in ADA lawsuits. First, the ADA permits civil actions by individuals to be filed without first providing notice to the defendant that ADA violations may exist. Responding to business concerns, Representative Mark Foley (R-FL) introduced the ADA Notification Bill (HR 728), which would remedy the ADA’s lack of notice provision by requiring prospective plaintiffs to provide a 90-day notice to business owners prior to filing lawsuits for alleged ADA violations. The bill’s supporters claim giving business owners the opportunity to remove barriers prior to defending a lawsuit is a reasonable amendment to the ADA, but accessibility rights activists have vehemently sought the bill’s defeat in Congress, claiming that the bill will impair the disabled public’s rights.

The second dangerous provision is that the ADA awards plaintiffs’ attorneys’ fees and costs in the event of a judicial decision against a defendant or in the case of a settlement in which alterations result. Since most cases are settled before trial, defendants usually bear the cost of all legal fees, and attorneys’ fees sometimes egregiously outweigh the cost of removing barriers. Actor Clint Eastwood decided to fight rather than settle suit with a disabled guest, which alleged ADA violations at Eastwood’s historic Mission Ranch Hotel in Carmel, California. Though the cost of accessibility alterations to the hotel was estimated at $7,000, Eastwood fought the suit and was later outraged by the plaintiff’s attorney’s attempt to collect $577,000 in legal fees.

Regardless of HR 728’s fate, businesses do not need to wait until they are sued to protect themselves and minimize the risk of accessibility litigation. The most abused portion of the ADA falls under Title III, which covers the physical accessibility of public accommodations and commercial facilities. Public entities, such as municipalities, have also been targeted.

Broadly speaking, Title III of the ADA sets forth three standards for full compliance with the ADA’s regulation’s implementing guidelines, the Americans with Disabilities Act Accessibility Guidelines (ADAAG). Based on the physical nature of the property and the barrier, these three standards are: the “new construction” standard for all new construction that occurred after the ADA’s enactment; the “alterations” standard for alterations to existing properties after the ADA’s enactment; and the “barrier removal” standard for properties that are neither newly constructed nor altered after the ADA’s enactment.

Congress recognized that requiring all buildings to be modified for full accessibility would have been a compliance nightmare for businesses and building owners. The “new construction,” “alterations,” and “barrier removal” standards sought a more reasonable, gradual approach to accessibility.

Of the three standards, new construction has the highest burden of compliance with the ADAAG since all elements of new buildings must fully comply with the regulations. Next, the standard for alterations performed on existing buildings requires that the building must be made accessible to the “maximum extent feasible.” Finally, the “barrier removal” standard refers to existing properties that were not altered, but for which barrier to full accessibility exists in certain public areas of properties. These barriers must be removed to the extent that such removal is “readily achievable.”

Since all new construction should already comply with the requirements of the ADAAG, owners of older properties should be concerned with minimizing the risk of ADA litigation as it relates to alterations and barrier removal at existing properties. Risk management for ADA litigation can be done through self-evaluation of ADA compliance and correction of accessibility deficiencies.

Though no amount of risk prevention can completely eliminate the risk of ADA litigation, the first step in prevention is to proactively understand both the requirements of the ADA and the ADAAG, as well as the existing accessibility conditions of a property through a complete self-evaluation of the property’s physical assets. Owners may either conduct self-evaluations themselves or engage experienced professionals to perform ADA evaluations.

Along with the rise in litigation, an industry of professionals engaged to assist defendants in accessibility suits has developed. However, an important factor in hiring a professional is his basic qualifications to competently perform the evaluation and to his credibility in the event of litigation. At a minimum, professionals should be well versed in the requirements of the ADAAG through professional training and/or experience. Ideally, the professional, such as an architect, understands not only the requirements of the ADAAG, but is also able to integrate applicable local and national building codes into the accessibility analysis. A proper understanding of all codes and restrictions that affect properties will yield the best analysis and the best recommendations for making the necessary accessibility modifications.

In the case of litigation, plaintiffs may demand changes to properties for accessibility that are not allowed by building or life safety codes, in which case, alternative methods for ADA compliance must be found. For this reason, defendants to accessibility suits should not rely on the plaintiff’s expert to determine whether a property is in compliance with the ADA.

Whether an owner undertakes an accessibility self-evaluation or engages a professional, a proper checklist should be created that is tailored to the property type evaluated. The checklist provides a format for precisely noting the extent ADAAG compliance or noncompliance of a property and determining the extent of modifications necessary. A checklist for a hotel, for example, will share many of the features that are inspected for a restaurant, but will also have features that are unique. Building Owners & Managers Association International publishes commercial checklists that are useful starting points for creating customized accessibility checklists.

Following the self-evaluation and completion of an accessibility checklist, a legal and cost-benefit analysis should be performed to determine the extent of modifications required to comply with the ADAAG, and to minimize the risk of an accessibility lawsuit. Alterations made to existing buildings must be fully accessible to the “maximum extent feasible.” Obviously, this falls somewhat short of the new construction standard, which requires full compliance with the ADAAG. Generally speaking, the difference between the two standards is not great, and an owner who banks on the vagueness of the ADA’s language to skirt making certain alterations may be inviting a lawsuit.

For properties that were not altered or for portions of properties that were untouched by alterations, barriers may still need to be removed to the extent such removal is “readily achievable,” a standard that factors difficulty and cost. Many of the “drive-by lawsuits” are filed to remove barriers in existing facilities that were not altered and were constructed before the enactment of the ADA. Often, businesses are identified as likely candidates for litigation because their property’s parking lots lack sufficient handicapped parking spaces or proper accessibility signage. This lack of accessibility signals the strong possibility that the rest of the building may also not fully comply with the ADA’s requirements.

Therefore, understanding the extent of a property’s compliance with the ADA and the standard of applicable compliance required will permit an owner to develop a proactive plan for correcting accessibility deficiencies in advance of costly litigation. Owners may also want to consult disabled individuals or accessibility rights organizations to assist in the planning and execution of the changes to the property. By doing so, an owner can appreciate the viewpoint of the disabled public and address issues that may not be apparent from a strict understanding and application of the ADAAG but may still expose a property to ADA litigation.

Finally, exposure to accessibility lawsuits can also be minimized during the transactional side of property ownership. Parties to various types of transactions may seek indemnification and hold-harmless agreements from the party in the better position to know whether a property is in compliance (though this should not excuse a purchaser or lender from performing his own due diligence when contemplating the transaction). Purchasers of properties may seek indemnification from sellers; landlords from tenants, lenders from borrowers; and owners from architects and contractors. In each of these transactions, all parties may be named in ADA lawsuits and held liable, therefore no amount of indemnification between the parties will completely avoid legal liability exposure. However, by taking proper proactive steps such as self-evaluation accessibility inspections, promptly addressing any deficiencies and employing risk shifting strategies during the transactional phase of ownership, property owners and businesses can take great steps to avoid the current rising trend in ADA litigation.

Gary Cole is a licensed architect and an Illinois- and Florida-licensed attorney practicing in the Chicago office of Seyfarth Shaw law firm.

©2004 France Publications, Inc. Duplication or reproduction of this article not permitted without authorization from France Publications, Inc. For information on reprints of this article contact Barbara Sherer at (630) 554-6054.