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Rebecca Green | SBJ

Ramping Up: Federal accessibility lawsuits are rising sharply

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Business is about much more than reaching customers or clients with products or services. Federal law says it’s also about making sure those customers do not face barriers in accessing those public accommodations.

In 2021, plaintiffs filed a record number of federal lawsuits accusing businesses of discriminating against people with disabilities through inaccessible physical facilities.

Chicago law firm Seyfarth Shaw LLP reported that last year, the U.S. saw 11,452 federal filings under Americans with Disabilities Act Title III.

That law, passed in 1990, prohibits discrimination on the basis of disability and requires places of public accommodation to have accessible design.

Seyfarth Shaw found a 320% increase in ADA Title III lawsuits in the past eight years. The numbers have been steadily climbing since the firm started keeping track in 2013, when 2,722 cases were filed.

Bucking the trend
Derek Ankrom, a partner with Spencer Fane LLP, said Springfield experienced a wave of Title III cases about a decade ago, but since that time, there has been good law developed within the U.S. Court of Appeals for the Eighth Circuit, particularly related to the requirements for bringing and maintaining those cases.

“These have in some respects diminished the filing of those particular types of lawsuits here,” he said. “These things come in waves. They come in different forms.”

Ten years ago, Ankrom said, Springfield saw more lawsuits regarding public locations, such as strip malls or restaurants, with plaintiffs alleging that there were physical barriers to their access.

Many of these cases were filed by law firms that were not locally based, often representing clients who also were not local, he said.

“One of the things that has developed in the Eighth Circuit is a pretty heavily enforced requirement that an individual claiming disability discrimination under Title III has to establish intent to return to the place where the alleged access issue has occurred,” Ankrom said.

Title III centers on a person’s access to a place of accommodation, he said. If the person is not likely to return to a store or restaurant, there may not be a case.

“There is some skepticism when that occurs,” he said. “The court is going to look very closely at whether this is a true impediment to a person’s access to a place of accommodation or a situation where a law that is intended to prevent barriers of access is being abused.”

Attorney Greggory Groves of Lowther Johnson Attorneys at Law LLC makes a distinction between a standard disability lawsuit and what he calls a drive-by lawsuit.

“You have your standard disability lawsuit – somebody has a serious disease, and that disease interferes with their ability to walk, drive, things like that,” he said. “Businesses have a duty to accommodate that person.”

And most of the time, Groves said, they do.

On the other hand, there are cases where a person driving by a hotel notices that a parking lot is not appropriately sloped. They note that a problem keeps the hotel from conforming with the ADA, so they decide to sue.

It’s not something that happens a lot locally, Groves said, though these are the types of cases that are increasing nationally.

In the St. Louis-based Eighth Circuit, which serves Missouri and six other Midwestern states, plaintiffs need to establish standing – which is to say, they have to show they have been harmed by the situation at the heart of their suit.

“The mere fact that you drive by, if you never intend to patronize that business and you’re just looking for a lawsuit, you’re not going to get very far,” he said.

New frontier
Especially since COVID-19, businesses have been operating differently, often remotely, with workers stationed at home and much of the customer or client interaction happening online.

In these cases, websites can be seen as a place of public accommodation, and people with disabilities have a right to be served there, too.

Does ADA Title III apply to websites? Groves said that is not settled law. The federal appeals courts are split, with some saying it does, some saying it doesn’t and other circuits not yet weighing in.

But Groves said he believes the majority of increases in local cases will concern websites.

Ankrom noted that an online domain can be interpreted as a place of public accommodation.

“As we’ve gotten into new technology and new ways of doing business, the old saying that the Constitution is a living document applies to laws like the ADA as well,” he said. “We’re seeing text of an older law being applied to different situations, scenarios and new technologies every day.”

The U.S. Department of Justice Civil Rights Division provides examples of website accessibility barriers:

  • Poor color contrast. People with limited vision or color blindness cannot read text on low-contrast backgrounds.
  • Use of color alone to give information. People who are color-blind may not be able to access information if only color cues are used.
  • Lack of alternative text on images. People who are blind cannot receive information conveyed in pictures, illustrations or charts without alternative text being provided.
  • No captions on videos. People who cannot hear cannot receive information from a video without captions.
  • Inaccessible online forms or mouse-only navigation. People who are limited in fine-motor control may be limited to using a keyboard.

Groves said business owners may have a hard time understanding if their website is accessible, as there aren’t strong guidelines about that.

“How do you make a website more accessible to somebody who may have difficulty with colors or text?” he said.

Avoiding lawsuits
The best way for business owners to steer clear of accessibility lawsuits is to have accessible public accommodations – full stop.

Barring that, Groves said, if the problem is fixed before the case goes to court, the judge may look favorably upon a defendant.

Ankrom noted business owners need to be mindful of accommodating people with disabilities.

“I certainly think that any time someone’s going into business, they need to seriously consider the way that the ADA may impact it,” he said.

If a business owner is renovating or building a structure, most, but not all, of those issues are going to be addressed by building codes.

Ankrom suggested businesses use licensed contractors, whether they are physical builders or website designers, who understand the ADA. They should also consult with a lawyer before entering into new domains or expanding facilities.

“At bottom, when a business owner attempts to comply with the law, the likelihood that they will have, in fact, complied with the law is significantly greater than if they are not considering the law or not taking it seriously when they make those decisions in the first place,” he said.

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