It has been 17 years since the first President Bush signed into law the Americans with Disabilities Act (“ADA”). Congress’s intent in passing the ADA was to eliminate discrimination against millions of Americans with disabilities by establishing clear, consistent, and enforceable standards. The act was declared to be “the most sweeping piece of civil rights legislation possible in the history of our country, but certainly since the Civil War era.”

Recent reports from the National Council on Disability (“NCD”) and the United States House of Representatives suggest the ADA has improved conditions for the disabled in certain respects. According to these reports, real barriers have come down – the disabled are experiencing higher graduation rates, higher employment rates and lower poverty rates. Societal attitudes in the workplace and general public also appear to be changing for the better.

Despite these advances, and almost two decades later, the ADA continues to present challenges perhaps unforeseen when the act first became law. These challenges include the applicability of the ADA to the Internet, and the ongoing debate over “vexatious” public access litigation.

Overview of ADA Title III—Disabled Access Provision

The ADA provides five distinct provisions against disability discrimination. Title I prohibits employers from discriminating against qualified disabled individuals in hiring, compensation, termination, and job assignment. Title II prohibits discrimination by public entities in access to services and programs, and applies to nearly every state or local government entity. Title III requires privately owned businesses be accessible to persons with disabilities. Title IV requires access for the hearing and speech-impaired to specific telecommunications systems. Title V, “Miscellaneous Provisions,” pertain to remedies, retaliation, agency regulations, and alternate dispute resolution.

Title III was included in the ADA following testimony before Congress that many individuals with disabilities led isolated lives and did not frequent places of public accommodation because the individuals’ physical limitations were not accommodated. Physical barriers come in many different forms, including architectural, transportation and communications. The “public accommodations” at issue under Title III cover virtually every category of businesses, including retail establishments, schools, hotels, medical and recreational facilities, museums and other “places of public gathering.”

Existing facilities constructed before 1993 and new construction are treated differently under Title III. Newly constructed facilities must be “readily accessible to and usable by individuals with disabilities.” Existing facilities need only remove architectural and structural barriers where removal is “readily achievable.” This means that removal of a barrier must be “accomplishable and able to be carried out without much difficulty or expense.” Whether any modification is “readily achievable” depends on many factors. These criteria include the nature and the cost of the modification; the overall financial resources of the business in question; the number of persons employed at the facility; and the impact of removing the barrier on the operation of the facility. Under this fact-based test, what may be “readily achievable” for a small local business will be far different from what might be required of a larger organization.

Like the federal guidelines under the ADA, California has its own laws related to disability access. The California Disabled Persons Act requires that “full and equal access” be given to disabled individuals in accordance with the standards of Titles II and III of the ADA.

Litigating a Disability Access Claim

Private employers may be covered by both Title I and Title III. An employee claiming an ADA violation will bring his or her claim under Title I. To prevail under a theory of Title I disability discrimination, an employee/plaintiff must: (1) be an individual with a disability; (2) be capable of performing the essential functions of the job, with or without reasonable accommodation (a “qualified individual with a disability”) and (3) prove discrimination based on his or her disability. A plaintiff may establish discrimination by showing the employer failed to provide a reasonable accommodation, such as making the employer’s facilities readily accessible. An affirmative defense to this claim is that the requested accommodation would impose an undue hardship on the employer’s operation, i.e., an action that would require significant difficulty and expense.

Non-employees must rely on Title III. To prevail under Title III, a non-employee plaintiff must show: (1) he or she is disabled; (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 the plaintiff’s disability. The private entity can defeat the claim by establishing that the modification is not readily achievable. The private entity may also affirmatively defend against a Title III claim by asserting that to make the modification would create an undue burden on the business. This analysis is similar to the “undue hardship” analysis under Title I.

Continued Debate over High Volume ADA Litigation

Smaller and larger businesses alike have complained that “professional plaintiffs” target them for lawsuits based on hypertechnical alleged violations of Title III, resulting in serial claims by the same plaintiff-attorney team.

Years ago, Clint Eastwood gained national publicity when he fought off a litigant who alleged Eastwood’s 32-room Mission Ranch Hotel in Carmel, California violated Title III. According to the suit, at least one bathroom and the hotel parking lot were noncompliant and there were insufficient hotel rooms accessible to disabled guests. While publicly supportive of the ADA, Eastwood objected to using lawsuits as the primary vehicle for bringing about compliance. Eastwood aggressively defended against the plaintiff’s claim and became the champion of small businesses who could not afford to follow in his footsteps.

Not every business has Clint Eastwood’s resources. Therefore, many businesses pay settlements rather than litigate in court over parking lot stripes or whether bathroom grab handles are installed correctly. Both Congress and the courts have taken notice of this problem.

For example, on September 4, 2007, the Ninth Circuit Court of Appeals upheld a lower court’s order barring plaintiff Jarek Molski and his attorney, Thomas Frankovich, from filing Title III suits in the Central District of California court. Molski reportedly had filed “hundreds” of ADA lawsuits, many through Frankovich. The court was not at all pleased that Molski “plainly had lied” in his filings. The court pointed out it was impossible to believe Molski had suffered “13 identical injuries, generally to the same part of his body, in the course of performing the same activity, over a five-day period.” The court determined Frankovich had filed more than 200 similarly worded ADA suits with identical typos in each of the complaints. Frankovich also had written “astonishing” letters to defendants, encouraging them to settle rather than hire lawyers who would take them on a “billing expedition.”

Congress has held hearings and proposed legislation to curb Title III abuses. However, corrective legislation has not yet come to fruition. On September 5, 2007, Representative Ric Keller (R-Fla) introduced HR 3479, a bill that would require that businesses be given notice and an opportunity to correct Title III violations as a precondition to commencing civil litigation. Similar measures have died in previous sessions of Congress.

Not every plaintiff sues as part of a high-volume campaign. In its report to the President dated July 26, 2007, the NCD stated that many Americans with disabilities remain frustrated that disability discrimination has not been eliminated in the United States, the ADA has not been fully enforced and attitudinal barriers remain a challenge. There is also frustration over a lack of consistent access throughout the nation. Transportation, particularly in rural areas, remains a serious problem for individuals with disabilities.

Title III Compliance

A private-sector employer that does not have a facility open to the public is not necessarily required to comply with Title III’s requirements. However, most, if not all, employers are affected by Title III. For example, an employer may simply rent office space in a building owned and operated by someone other than the employer. If the building allows public access, the employer must ensure that its office space is in compliance with Title III, such as removing architectural barriers for a facility built before 1993 or making a facility built or substantially altered after 1993 readily accessible to individuals with disabilities.

Things become more complicated for an employer facing access claims by employees. Under Title III, an employer who has a facility built before 1993 need only remove any architectural barriers. Title I of the ADA, however, may require more action by the employer. Title I requires private employers to provide reasonable accommodations, potentially including providing a disabled employee with the proper access to the employer’s worksite and any facilities maintained by the employer to which the employee should have access. Under Title I, an employer may need to take steps to make its facility readily available as a reasonable accommodation for a disabled employee, despite the fact that the facility was built before 1993.

Business Solutions

Most business owners naturally want to comply with the law, and want to do the right thing when it comes to disabled access. What are the preventive options? How can small business avoid the financial devastation lawsuits sometimes bring?

Perhaps the most important step a business can take is to gain knowledge of where they stand with respect to public access. Retrofits can be costly, and can include a variety of construction projects and associated expense. For example, remodeling a business facility could trigger additional obligations to make facilities more accessible. Businesses should discuss access requirements with contractors and architects prior to embarking on any remodel project.

Another option available to businesses is to hire an ADA compliance consultant or an attorney familiar with ADA to audit facilities available to the public. It also is essential to select architects who have expertise in the disability access issues that arise. For very small businesses without sufficient resources to hire consultants, the Department of Justice has issued a free publication, “ADA Guide for Small Businesses” which addresses many “FAQs” on topics of interest such as proper signage, aisleäóñwidth, and correct slope of entrance ramps. Be sure to document your access improvement plans for achieving ADA compliance. If you are sued or investigated, such plans stand as critical evidence in your defense.

Finally, if you are sued for alleged Title III violations, immediately retain an attorney experienced in public access claims. Keep in mind that Title III claims are fairly straightforward in that a facility either is compliant with technical requirements (such as height or width measurements) or it is not. An experienced lawyer cannot change whether a facility is compliant, but will strive to minimize your legal costs and exposure. The attorney will conduct a cost-effective investigation to determine areas of non-compliance, have knowledge of typical settlement values, and work to quickly negotiate away as many alleged violations as possible.

For most businesses, the cost of compliance may be lower than resorting to the courts. Until legislation allowing “cure” period is passed, Title III compliance issues are best addressed proactively.