Robert S. Fine, AIA, is of counsel to the Miami office of Greenberg Traurig, P.A. He is a member of the American Institute of Architects, a registered Florida Real Estate Broker, and a frequent lecturer on ADA accessible design-related topics.
Prevent litigation in the first place,
but know your defenses just in case.
Title III of the Americans with Disabilities Act ("ADA") is that portion of the ADA that covers public accommodations and commercial facilities. Title III of the ADA may be found at 42 U.S.C. ßß12181-12189 and its implementing regulations at 28 C.F.R. Part 36.
Basically, public accommodations must comply with nondiscrimination requirements that prohibit exclusion, segregation and unequal treatment. Unlike other nondiscrimination laws, public accommodations comply with specific requirements related to architectural standards for new and altered buildings; reasonable modifications to policies, practices and procedures; effective communication with people with hearing, vision or speech disabilities; and other access requirements. Public accommodations must also remove barriers in existing buildings when that can be done without much difficulty or expense, given the public accommodation's resources.
Failure to comply with these requirements can expose your client to substantial liability. In fact, there is a small industry of disabled community advocacy groups and their respective counsel that actively seek out and sue non-complying enterprises. To protect your client from such liability, identify and redress compliance problems to avoid litigation and thoroughly familiarize yourself with the defenses to an ADA action in case litigation does occur.
Survey the facilities before getting sued
The best way to defend against ADA litigation is to avoid it altogether. Your client should be counseled to evaluate the extent of ADA compliance in its business(es) and facilities. To evaluate the extent of compliance with Title III requirements, an ADA survey is strongly suggested. For large or complicated facilities, it is essential. Choose a professional with extensive ADA experience to perform the survey. Be mindful of the great disparity in the knowledge and experience among architects and contractors with regard to ADA requirements and compliance. Checking references and resumes is crucial.
Get underway as quickly as possible.
The client should initiate an ADA compliance implementation plan as quickly as possible. The implementation plan usually is comprised of an ADA survey, which notes each barrier/compliance issue, the costs to remediate each compliance issue and projected completion dates for items on the survey. Being underway with the implementation plan provides several potential defenses:
• There are no barriers to access and the policies and practices are non-discriminatory.
• The client is in compliance with the removal of barriers requirements of the ADA.
• Even if the client has not yet completed its barrier removal plan, an injunction would not be appropriate where the "defendant" is already taking affirmative action (started before litigation or notice of impending litigation).
• The client should evaluate its policies and procedures to make sure they are not discriminatory in effect, even if not in intent. Although most Title III litigation centers around architectural barriers, failure to make reasonable modifications to policies and practices, or provide auxiliary aides and services, is considered actionable discrimination as well.
Put plaintiff attorneys' fees at risk.
The ADA is a fee-shifting statute. As with other civil rights statutes, the prevailing party gets attorneys' fees and costs. In practice, this means that the prevailing plaintiff gets fees and costs, but that a prevailing defendant almost never does.
In a number of geographical areas, plaintiffs' advocacy groups and their attorneys seek out a particular neighborhood, business district or industry and sue just about everyone or everything within the target area or industry. If your client's business appears superficially compliant, or to be taking some compliance-related action, plaintiffs' counsel may perceive a risk of losing, thereby not attaining fees, and thereby move on to easier prey.
It is not uncommon for the retention relationships between Title III plaintiff attorneys and their clients to not obligate their clients to pay them unless attorneys' fees are paid as part of a settlement or are awarded by the court.
A recent United States Supreme Court case, Buckhannon Board and Care Home, Inc., et al., v. West Virginia Department of Health and Human Resources, et al., 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001), has changed the dynamic and balance of power in some Title III litigation. Buckhannon effectively eliminated the catalyst theory of prevailing party in discrimination cases where damages are not available (such as Title III). Under Buckhannon, if a defendant comes into compliance with the applicable requirements of the ADA during the pendancy of the lawsuit, and prior to the court granting the plaintiff relief, then the court loses subject matter jurisdiction based on mootness, and since the court cannot then grant the plaintiffs relief, the plaintiffs are not considered as prevailing parties. Buckhannon has the potential to minimize the frequency of Title III litigation against public accommodations for minor violations of the architectural standards that can be quickly and easily fixed, effectively mooting a lawsuit and denying the plaintiff attorney fees and costs.
Initial evaluation of the case
If your client has been sued, perform a case evaluation at the outset.
Who is the adverse party?
The plaintiff may be an individual with a disability who has been allegedly discriminated against by the defendant and is now bringing an action. The plaintiff may have made a complaint to the defendant before initiating litigation. In litigation, the alleged violations claimed and remedies sought may be more limited than those in the pre-litigation complaint: The remedies sought in litigation may be more specifically related to the plaintiff's particular disability.
Or, the plaintiff may be an individual working with a disability advocate who is acting as a tester and who brings multiple lawsuits, similar to the plaintiff advocacy groups. This plaintiff's complaint may list a broad range of allegations both related to the plaintiff's disability and to other physical disabilities as well.
Or, the plaintiff may be a disability advocate organization that has as its purpose the filing of large numbers of lawsuits to bring about sweeping changes. This plaintiff's complaint may list a broad range of allegations both related to members of the plaintiff group's disabilities and to other physical disabilities as well. The plaintiff may be an individual with a disability or group who lends his, her or its standing to a plaintiffs' attorney to allow the attorney to file lawsuits on their behalf (i.e., standing may be questionable). Complaints from these plaintiffs may be broad-brush form complaints of the kitchen sink variety.
Who is opposing counsel?
Evaluate the opposition. Are you facing a medium to large law firm with major financial and human resources? Are the firm's personnel experienced in Title III litigation? Are you facing a small law firm with a manageable caseload? Does the firm do much Title III litigation? Is it a litigation firm? Or are you facing a small law firm or sole practitioner with a heavy caseload? Do counsel have much trial experience? The experience and size of the law firm you are facing may well foretell the way the lawsuit is going to go, and appropriate strategies to choose.
Evaluate the economics of litigation.
Litigation is expensive. On top of that there are the fee-shifting provisions of the ADA. Generally, the defendant pays two attorneys to argue, negotiate and litigate with each other. Most of the time, the analysis of whether to actively litigate an ADA lawsuit depends on the cost of litigating versus the net compliance cost. The net compliance cost equals the difference between what relief (generally in the form of building modifications) the plaintiff seeks and its cost, and the projected cost of complying with the minimum requirements the ADA would impose on defendant (or, put another way, what the judge would enjoin the defendant to do).
Evaluate the non-economic reasons for litigating
If the plaintiff's desired remedy would fundamentally alter the way the defendant does business, or would create a non-economic hardship on the defendant's business, the defendant might want or need to litigate regardless of the immediate costs of litigation. Some businesses have a corporate philosophy of forcing plaintiffs in any kind of lawsuit to go through the time, costs (where applicable) and unpleasantness of litigation making them fully litigate their claims - hoping to deter future litigation (of any type). Notwithstanding the costs of litigation, many defendants believe they have done no wrong and should not be liable.
Analyze the plaintiff's claims and the relief sought.
Get realistic estimates of costs to fully comply with the plaintiff's demands. Separate out plaintiff claims and the relief sought into those which are valid, as a matter of law, and those which are not, in the context of the instant litigation. The plaintiff only has standing to make claims related to his or her disability. See Steger v. Franco, Inc., 228 F.3d 889 (8th Cir. 2000); Parr v. L & L Drive-Inn Restaurant, 96 F. Supp. 2d 1065 (D. Haw. 2000). Include in this analysis the accessibility wish list sought by plaintiff but which the defendant is not legally obliged to provide under the law, a swimming pool lift, for example. See U.S. Department of Justice ADA Title III Technical Assistance Manual ("Title III-TAM") ?III-5.3000.
Evaluate the prudence of settling this claim if other claimants may materialize. Even if it is not worth litigating this particular plaintiff's claims, it may be worth litigating them if other potential plaintiffs are lurking about. By litigating this case, you may be able to limit your client's liability to other potential plaintiffs.
Defenses to ADA actions
In ADA litigation, a variety of potential defenses are available. The following is a list of various defenses that you may be able to assert. This list is not necessarily comprehensive.
The plaintiff doesn't have standing.
You may be able to challenge the standing of a plaintiff to bring suit. If the plaintiff does have standing he or she may not have standing to assert all of the various claims and demands that have been made in the lawsuit. See Steger v. Franco, Inc., 228 F.3d 889 (8th Cir. 2000); Parr v. L & L Drive-Inn Restaurant, 96 F. Supp. 2d 1065 (D. Haw. 2000).
It's not readily achievable.
The readily achievable defense applies to facilities and parts of facilities that are subject to the "removal of barriers" provisions of Title III. See 28 C.F.R. ß36.304. Readily achievable is defined as "easily accomplishable and able to be carried out without much difficulty or expense." 28 C.F.R. ß36.104.
The readily achievable defense applies to architectural barriers and communications barriers that are structural in nature in facilities that pre-exist the effective date of the Title III new construction and alterations standards. Newly constructed for first occupancy after Jan. 26, 1993, or altered after Jan. 26, 1992. 28 C.F.R. ßß36.401(a); 36.402(a). The readily achievable defense also applies to facilities and elements of facilities for which architectural standards are not provided in the Americans with Disabilities Act Accessibility Guidelines ("ADAAG"). Two examples of this are:
• Movable displays in retail stores. See Lieber v. Macy's West, Inc., 80 F. Supp. 2d 1065 (N.D. Cal 1999); and
• Cruise ships. See Resnick v. Magical Cruise Company, Ltd, 148 F. Supp. 2d 1298, 1305 (M.D. Fla. 2001); Association for Disabled Americans v. Concorde Gaming Corp. and Goldcoast Entertainment Cruises, Inc., 158 F. Supp. 2d 1353 (S.D. Fla. 2001).
It would be a fundamental alteration.
Title III makes it illegal to fail "to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations." 42 U.S.C. ß12182(b)(2)(A)(ii) (emphasis added).
It's technically infeasible.
Alleging that a modification or alteration would be technically infeasible would be a defense for having made alterations that do not strictly comply with the alterations standards in the ADAAG.
"Technically Infeasible. Means, with respect to an alteration of a building or a facility, that it has little likelihood of being accomplished because existing structural conditions would require removing or altering a load-bearing member which is an essential part of the structural frame; or because other existing physical or site constraints prohibit modification or addition of elements, spaces, or features which are in full and strict compliance with the minimum requirements for new construction and which are necessary to provide accessibility." ADAAG ß4.1.6(1)(j).
It's a threat to health and safety.
In regard to the facilities or facility elements that are covered by the "removal of barriers" standards: "No measure shall be taken, however, that poses a significant risk to the health and safety of individuals with disabilities or others." 28 C.F.R. ß36.304(d)(2).
It's an undue burden.
This defense, defined in the Treasury Regulations as "significant difficulty or expense," applies to the question of whether a public accommodation must provide auxiliary aids and services. See 28 C.F.R. ß36.303(a).
It's not a place of public accommodation.
Most of the requirements of Title III apply only to places of public accommodation. They do not apply to commercial facilities or multi-family housing facilities that are not also places of public accommodation. See 28 C.F.R. Part 36, generally. Note that the new construction and alterations requirements of Title III do apply to commercial facilities that are not places of public accommodation. See 28 C.F.R. Part 36, subpart D.
This case is moot
For most of the time that the ADA has been in effect, the catalyst theory of prevailing party was the law in most circuits. The catalyst theory provided that notwithstanding the legal outcome of the case, if the plaintiff achieved at least some of the relief asked for in the suit, it would be the prevailing party. Even if a defendant came into full compliance during the pendency of the suit and mooted the action trial the plaintiff would be the prevailing party under the catalyst theory. In Buckhannon Bd. And Care Home, Inc. v. West Virginia Dept. of Health and Human Resources, 532 U.S. 598 (2001), the Court eliminated the catalyst theory of prevailing party. If a case becomes moot, there is no longer a case or controversy and the court loses subject matter jurisdiction and must dismiss the action. Without the catalyst theory, when the case is dismissed without the court granting relief, the plaintiff is not the prevailing party for the purpose of attorneys' fees.
Dispositive motions can be a very useful tool in Title III litigation from the defense perspective on account of the nature of the claims and various defenses. They are also useful for narrowing down the issues in a case hopefully leaving only a small number of remaining issues to settle upon or to be tried.
Issues for dispositive motions (motion to dismiss, motion for summary judgment, motion for partial summary judgment, motion for determination of applicable standards) include:
The standing of the plaintiff or various plaintiffs
Plaintiffs without standing are removed from the lawsuit. If all plaintiffs in a suit lack standing, the lawsuit is dismissed. Since plaintiffs only have standing to bring claims and seek remedies related to their particular disabilities, eliminating plaintiffs from a multiple-plaintiff lawsuit may limit the available claims that can be made by the remaining plaintiffs. See Steger v. Franco, 228 F.3d 889, 893-94 (8th Cir. 2000).
Defendant is not a place of public accommodation
With the exception of new construction and alterations requirements, the requirements of Title III are imposed on places of public accommodation and not commercial facilities that are not places of public accommodation. See generally 28 C.F.R. Part 36.
Lawsuits against entities that are not places of public accommodation (unless the claim is non-compliance with new construction or alterations requirements) are subject to dismissal by way of dispositive motions. See Stoutenborough v. National Football League, 59 F.3d 580 (6th Cir. 1995), cert. denied, 516 U.S. 1028 (1995); Rendon v. Valleycrest Productions, 119 F. Supp. 2d 1344 (S.D. Fla. 2000).
Businesses and facilities can have both places of public accommodation and commercial facilities that are not places of public accommodation. Each of these two areas are only subject to the corresponding requirements for each. See Jankey v. Twentieth Century Fox Film Corp., 212 F.3d 1159 (9th Cir. 2000).
Non-public areas of a place of public accommodation may not be subject to the requirements imposed on public accommodations. In Louie v. Ideal Cleaners, 1999 WL 1269191 (N.D. Cal. Dec. 14, 1999), for example, a disabled plaintiff sued a dry cleaner for having a non-accessible employee-only restroom. The court held: "A plaintiff is not denied equal access to a restroom on account of his disability if non-disabled customers in the same position are denied access as well." Id. at *3.
What if the defendant is sued for not making facilities or elements of facilities accessible when no promulgated regulations or standards apply? A public accommodation cannot be held liable for not making a facility or element of a facility accessible when there are no standards promulgated for the subject facility or element. See Department of Justice Americans with Disabilities Act Title III Technical Assistance Manual ("DOJ-TAM III"), ßIII-5.3000. For example, cruise ships. See Resnick v. Magical Cruise Company, Ltd., 148 F. Supp.2d 1298, 1303 (M.D. Fla. 2001); Assoc. for Disabled Americans, Inc. v. Concorde Gaming Corp. and Goldcoast Entertainment Cruises, Inc., 158 F. Supp. 2d 1353(S.D. Fla. 2001). For example, a swimming pool lift. See DOJ-TAM III,ßIII-5.3000. Note, however, that other requirements of the ADA may apply (failure to make reasonable modifications to policies and practices, failure to provide auxiliary aids and services, etc.).
Has the application of a statute, regulation or guideline been properly interpreted? The interpretation of federal regulations, like issues of statutory interpretation, is an issue of law for the court. Access Now, Inc. v. Ambulatory Surgical Center Group, Ltd., 2001 WL 617529 (S.D. Fla. May 2, 2001). See also Snapp v. Unlimited Concepts, Inc., 208 F.3d 928, 933 (11th Cir. 2000), cert. denied, 532 U.S. 975 (2001) (statutory interpretation is a pure question of law); Royal Caribbean Cruises, Ltd. v. U.S., 108 F.3d 290 (11th Cir. 1997) (affirming summary judgment based on court's appropriate interpretation of federal regulation).
Prima facie case of discrimination
A Title III action may be disposed of on summary judgment when the plaintiff fails to make a prima facie case. See Access Now and Edward Resnick v. South Florida Stadium Corp., 161 F. Supp. 2d 1357 (S.D. Fla. 2001). In a removal of barriers claim, the plaintiff must initially introduce evidence tending to establish that the proposed method of architectural barrier removal is "readily achievable," i.e., "easily accomplishable and able to be carried out without much difficulty or expense" under the particular circumstances. Only if the plaintiff satisfies this initial burden does the burden of persuasion shift to the defendant to prove that the requested barrier removal method is not readily achievable. Colorado Cross Disability Coalition v. Hermanson Family L.P., 264 F.3d 999 (10th Cir. 2001).
In a reasonable modifications claim, the plaintiff bears the burden of proving that a modification was requested and that the requested modification was reasonable. Once the plaintiff meets the burden of showing that an accommodation is reasonable in the general sense, the defendant must make the requested accommodation unless the defendant pleads and meets its burden of proving that the requested accommodation would fundamentally alter the nature of the public accommodation.
The plaintiff bears the ultimate burden of proof on the issue of reasonableness, while the defendant bears the burden of proving the requested accommodation would fundamentally alter the nature of the public accommodation. See Johnson v. Gambrinus Co./Spoetzl Brewery, 116 F.3d 1052, 1059 (5th Cir. 1997); Colorado Cross Disability Coalition, 264 F.3d at 1002-03.
Practice checklist for defending against Title III Americans with Disabilities Act litigation
Under Title III of the Americans with Disabilities Act, public accommodations must comply with basic nondiscrimination requirements that prohibit exclusion, segregation and unequal treatment. They also must comply with specific requirements related to architectural standards for new and altered buildings; reasonable modifications to policies, practices and procedures; effective communication with people with hearing, vision or speech disabilities; and other access requirements. Additionally, public accommodations must remove barriers in existing buildings when that can be done without much difficulty or expense, given the public accommodation's resources.
• When representing real estate developers, owners and contractors, counsel your client to do an initial ADA evaluation, then get a compliance program underway. This provides two potential defenses.
- The client is in compliance with the removal of barriers requirements of the ADA. Even if client has not yet completed removing all barriers, an injunction might not be appropriate when the defendant is already taking affirmative action.
- Even if client has not yet completed removing all barriers required to be removed, the less work to be done in order to moot an lawsuit, the better chance of doing so and depriving plaintiff counsel of fees (possibly making it less likely that a suit is filed in the first place as opposed to a letter requesting modifications).
• Know the defenses to a Title III ADA action.
- You may be able to challenge the standing of a plaintiff to bring suit, as well as to make all of the various claims and demands that have been made in the lawsuit.
- You may be able to assert that the modification or construction sought is not readily achievable.
- You may be able to argue that it would be a fundamental alteration in the manner that a public accommodation provides its goods, services, facilities, benefits, etc. Title III makes it illegal to fail to make reasonable modifications in policies, practices or procedures unless doing so would cause a fundamental alteration.
- You may be able to argue that the demand is technically infeasible. Alleging that a modification or alteration would be technically infeasible would be a defense for having made alterations that do not strictly comply with the alterations standards in the ADAAG.
- You may be able to argue that it's a direct threat to the health and safety of the complainant/plaintiff and/or others.
- You may be able to argue that it's an undue burden. This defense, defined in the Treasury Regulations as "significant difficulty or expense," applies to the question of whether a public accommodation must provide auxiliary aids and services.
- You may be able to argue that it's not a place of public accommodation. Most of the requirements of Title III apply only to places of public accommodation. They do not apply to commercial facilities or multi-family housing facilities that are not also places of public accommodation.
- You may be able to argue the case is moot, there is no case or controversy remaining and the court no longer has subject matter jurisdiction and the case should be dismissed with no fees and costs to the plaintiff.
• Dispositive motions - dismiss, summary judgment, partial summary judgment, determination of applicable standards - can be very useful in Title III litigation. Issues for dispositive motions (motion) include:
- The standing of the plaintiff to sue;
- The status of the defendant as a public accommodation;
- The case is moot;
- The plaintiff cannot carry his burden to make a prima facie case;
- The standards being cited as not being complied with are inapplicable; or
- There are no promulgated standards for the type of facility being cited.
Copyright 2002 The American Law Institute. Reprinted with the permission of The Practical Real Estate Lawyer and the author. Subscription rates $49/year. $12.96/single issue. This article appeared in the May 2002 issue of The Practical Real Estate Lawyer (Volume 18, Number 3). The article has been revised by the author to reflect recent changes in the law.