The Americans with Disabilities Act of 1990 was enacted to recognize and protect the civil rights of people with disabilities. Title III of the ADA addresses physical access for the disabled to commercial facilities and places of public accommodation. That title provides that no individual "shall be discriminated against on the basis of disability in the full and equal enjoyment of goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation." 42 U.S.C. § 12182(a); C.F.R. § 36.201. By their very nature, retail establishments are places of "public accommodation" pursuant to the ADA, and retail operators and landlords must comply with its accessibility provisions.
Given the Act's broad implications, three practical rules are instructive:
- All public accommodation new construction commenced after 1990 must be ADA accessible.
- Owners and lessees of existing buildings are required to remove architectural barriers to the disabled when it is "readily achievable" to do so.
- Where barrier removal is not readily achievable, the ADA expressly requires a public accommodation to make its goods, services, facilities, privileges, advantages and accommodations available through alternative methods where such methods are "readily achievable."
Because nearly all new construction requires ADA compliance at the permitting stage, the majority of lawsuits brought under Title III are related to whether a property owner or lessee has taken all "readily achievable" steps to remove architectural barriers to the disabled or provide alternate methods for access.
Retail establishments throughout the nation have encountered difficulty when addressing whether alterations are "readily achievable." To add to this problem, many retail leases fail to address ADA requirements altogether or do so in an ambiguous manner. This poses a two-fold question: 1) is an alteration readily achievable?; and 2) if so, who bears the financial responsibility for completing the alteration - the landlord or the tenant?
As many retail establishments have learned the hard way, the line between "too expensive" and "readily achievable" is not a bright one - this despite the fact the vast majority of retailers endeavor to accommodate the disabled by all practical means. Moreover, allocation of ADA compliance responsibilities within a retail lease offers little comfort once a lawsuit is brought against both the retailer and its landlord.
In the past several years, the number of private ADA lawsuits has grown dramatically. Most of these cases involve access to stores, parking lots or garages, restrooms, and lack of proper signage. Though the plaintiffs are generally unable to show any intent to discriminate, the lawsuits nevertheless seek injunctive relief, money damages (treble damages in some states pursuant to state law), punitive damages, and reimbursement for attorney fees and costs. Of the damages sought, the recovery of attorney fees and costs may prove the most troubling for retailers and their landlords: plaintiff's lawyers can solicit clients with a promise of no legal fees unless there is an ultimate recovery on their behalf. Moreover, this promise of attorney fee recovery can serve as a hindrance to early, good faith settlement of cases.
As the surge of ADA lawsuits against retailers continues, it is prudent to conduct a good faith assessment of your establishment's ADA compliance and determine whether your lease properly allocates the burden of ADA compliance. Various architectural and consulting firms offer ADA access assessments, and the money spent will go a long way toward defending any future claims. At the very least, retailers should consult with legal counsel to help them determine whether all "readily achievable" steps have been taken to provide disabled access at their sites. As ADA suits against retailers increase, those retailers that have taken steps to ensure disabled access to their facilities not only protect themselves from expensive litigation, but also ensure that their products and services are available to all.
Originally printed in the Oregon Winegrowers Association "Grapevine" in 2003. Courtesy of Peter Leichtfuss.