Although ADA litigation appears to be more successful since the clarity set forth in the 2008 Amendments (and 2010 Standards), generally speaking, people with disabilities do not sue an establishment. When do people sue?
(What follows, below, is my opinion as an attorney regarding when people sue under the ADA, and their motivations. My opinion is based upon years of reading and writing about the ADA, and following litigation and trends involving the ADA.)
Businesses of limited means are often counseled to approach initial accessibility compliance by the “in & out” approach: can a person with a disability park, enter the premises, get around the store, and leave? The reason for this approach is because, if someone (typically speaking, someone with a mobility limitation) can get to the business, enter, get around the aisles, and exit, then there is a decent likelihood that an accessibility claim will not be raised. If someone in a wheelchair can park, enter a store, purchase something, and leave, there is a greatly-reduced risk that a lawsuit will result due to non-compliant signage, or the counter being too high. If the patron’s “basic needs” are met, then people do not sue generally due to lack of interest, lack of time, and lack of resources.
This scenario obviously changes if someone with a disability is looking for violations. Most establishments will likely have something that does not comply with the Standards. People looking for violations have covered the other bases as well: they have an interest because they have both the time and resources (an attorney or group to represent their legal interests).
Another reason for lawsuits that do not involve people looking for violations is the response someone with a disability receives regarding a violation. For a wheelchair user in Indiana, a major movie theater had disabled parking at the theater but no curb cut and no wheelchair access up onto the sidewalk. The patron was lifted up onto the sidewalk, and once inside approached the manager to inquire. His response: “Not our problem, go talk to the city [theater was on private property leased by the theater].” The result? A $5,000+ lawsuit. Compare this situation to one where a city had a large sign at a beach entrance with “Beach Regulations” that included “No animals or pets.” This is an ADA violation because service animals would be permitted. The city attorney was contacted, and within one day the city responded, acknowledged the error, and purchased signs to affix to the beach rules stating “Service Animals Permitted.” The result? A complimentary Letter to the Editor, and more importantly, no lawsuit.
Compliance is key, but until that is achieved, attitude goes a long way.
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