By Chakeema Cruickshank, Staff Writer
Earlier this year, The New York Times published an article about man who filed more than 180 lawsuits in California. He successfully sued multiple businesses, including restaurants, movie theaters, educational institutions, and stores for violating the Americans with Disabilities Act (ADA). This is not uncommon – and happens in New Jersey, where businesses often are subject to disability access claims. Those can include, but are not limited to, non-compliant parking, failure to provide a wheelchair ramp, or accessible seating.
Is this a form of “ambulance chasing” or a viable route for obtaining justice for people with disabilities? First, it’s important to understand the Americans with Disabilities Act (ADA) for context.
The ADA Explained:
According to the Centers for Disease Control (CDC), 61 million adults in the United States are living with a disability, which is 1 in 4 Americans. Those with disabilities may face discrimination in employment, education, and have difficulty accessing regular goods and services. Along with that, living with a disability is expensive and the out-of-pocket expenses can be exceptionally high. Recent research from the National Disability Institute shows this disparity. On average, a household containing an adult with a disability that limits their ability to work requires 28 percent more income, or an additional $17,690 a year, to obtain the same standard of living as a similar household without a member with a disability. The substantial costs of living with a disability indicate that more work is needed to further the goals of the ADA.
The Americans with Disabilities Act was signed into law in 1990 to help provide goods and services on an equal basis to all and bridge this gap. Along with the Law Against Discrimination (LAD) in New Jersey, these laws are intended to help diminish discrimination against those with disabilities. Both ADA and LAD lawsuits can be brought in conjunction. Title I of the ADA deals with violations related to employment, Title II relates to government agencies, and Title III mandates that all businesses must be accessible and make reasonable accommodations and modifications. Unlike other legislation, there is no federal office to monitor or enforce those standards. This leaves violations to be addressed in the Courts. In the Courts, the person suing needs to demonstrate how the business being sued violated the ADA standards. That being said, businesses and organizations frequently vary on how they implement accommodations.
In order to prove a violation of Title II of the ADA, a person must establish that (1) he/she is a qualified individual with a disability; (2) he/she was either excluded from participation in, or denied the benefits of, the defendant’s services, programs, or activities, or was otherwise discriminated against by the defendant; and (3) that exclusion, denial of benefits, or discrimination was because of his/her disability. Lasky v. Moorestown Tp. 42 A.3d 212 (N.J. Super. Ct. App. Div. 2012). Also law requires States to take reasonable measures to remove architectural and other barriers to accessibility. Title II requires only reasonable modifications that would not fundamentally alter the nature of the service provided. Id. at 217. But some modifications must be made to make businesses accessible.
In many cases, it is cheaper to settle a claim than to risk costly litigation. Disabled persons may seek “equitable relief,” which is the removal of the barrier. Many businesses choose this route and remove the accessibility barrier, for example, making the countertops at a restaurant accessible level. This can be costly, but it is typically much more efficient than a long and expensive legal battle. In NJ, successful litigants can also recover reasonable attorney’s fees and costs, including expert witness fees.
“Serial litigation” happens when multiple suits are brought within the same time span. For example, in California, the same two plaintiffs filed more than 811 lawsuits in the span of 5 years! Another example involves a NJ law firm that has filed 52 nearly identical lawsuits against companies operating in Colorado. These lawsuits – and the pursuit of legal fees – may draw away from the real need: fixing the accessibility barrier.
The name “drive-by” lawsuits have risen in popularity along with “click-by” lawsuits. Drive by suits involve an individual stopping by different businesses to see if there are any ADA violations. ADA testers visit different businesses to test accessibility, then file a lawsuit if they believe an accessibility issue exists. More recently, “click-by” suits have risen in popularity as well. They involve clicking on a website to check its compliance with ADA standards. In the digital media age, it is important for businesses to be ADA accessible online as more and more lawsuits involve incompliant websites without screen readers. These lawsuits highlight a real issue: many websites and businesses may not be fully accessible. However, serial litigation can take away from the viability of the lawsuits that are well-intentioned.
Prevention is key in regard to ADA lawsuits and to achieve greater accessibility for all. The best prevention for both large and small businesses is compliance with ADA standards and effective company policy.
Accessibility Consultant, Carl E. Peters, P.E., of Fords. New Jersey, says:
“While I have been able to help businesses come into compliance with the ADA after they have been sued, it would be much better to identify and correct ADA violations before a lawsuit is filed. In my experience, these serial litigators always were able to identify some deficiencies at the buildings and sites they targeted. Sometimes, the problems came from improper construction such as curb ramps which are too steep, have a lip at the bottom or have no level landing at the top. Others were related to deferred maintenance such as broken pavement and sidewalk or post construction modifications to items such as door hardware or toilet paper dispensers.”
An accessibility survey can enable a business owner or landlord to identify problems before they fall victim to an ADA lawsuit. Having in-house staff trained to identify ADA violations may be the best defense against this type of litigation. Mr. Peters may be reached by phone at: (732) 661-6897 or by e-mail: [email protected] if you have questions regarding the level of compliance at your facility.
Businesses should also look at the State of New Jersey’s Department of Human Services for requirements and the ADA website for the full list of the requirements. The most recent update to the regulations was March 2011 and included accessibility requirements such as for service animals, wheelchairs, and accessible seating.
Those living without a disability may not think twice about some of these requirements. But they can make a world of difference for those living with a disability. While there are serial litigants, lawsuits still remain a critical tool for people living with disabilities to achieve greater access.
Staff Writer Chakeema Cruickshank is currently a first year at Rutgers Law School Camden. Prior to Rutgers Law, she worked for United States Senator Robert Menendez doing constituent relations and outreach for education, environment, and technology.