MYTHS ABOUT ADA COMPLIANCE
California law provides up to $4,000 or more in minimum damages – plus attorney fees – if someone with certain disabilities comes to your business and encounters a condition which was required to be changed. In fact, 25,000 to 35,000 ADA/accessibility lawsuits have been filed throughout California in the past few years.
“I am grandfathered”
- “Grandfathering” in building code does not apply to these civil rights claims.
- If you are open to the public, people with disabilities have a civil right to equal access to your goods and services.
- To date, no business in California has successfully defended an ADA/accessibility claim on the basis of grandfathering.
“They have to send me a complaint letter before a lawsuit.”
- Currently, no civil rights law requires that a letter be sent before a lawsuit can be filed.
- The laws were intended to have the changes be in place when a visitor arrives at the business.
“My building complied when it was built”
- Few building inspectors look for possible ADA compliance issues.
- Many businesses which pass California lottery and other inspections still have conditions which support these lawsuits.
“People with disabilities have come and gone for years without mentioning problems.”
- What does not necessarily cause a problem for one disability, may be a barrier for another.
- Some people don’t like to openly ask for special treatment or accommodations.
- On the other hand, many people are concerned their comments won’t be well received.
“Whenever we see a wheelchair, we go out of our way to assist.”
- Though well received, polite offers do not make up for the need of special assistance.
- Still, people with disabilities are entitled to leave and sue if they see a condition which could present problems for them.
- Many businesses that are sued never see the plaintiff.
“All they needed to do was ask.” “We have a ramp around back if they looked.”
- How would a new visitor know without a posted sign?
- People with respiratory or mobility problems should not be expected to go exploring to find an alternative.
- Will they feel like “second class” customers if required to use a rear entrance?
“These lawsuits were not intended by legislators or judges.”
- California legislators have declined to stop private enforcement of accessibility laws on 24 separate occasions.
“I’ll just follow the ADA codes.”
- California has a higher standard than the ADA, and some are directly conflicting.
- And 98% of all California businesses are believed to have at least one condition which would support a $4,000 damage claim.
“I’ll just buy a temporary fix, I don’t have to make permanent improvements.”
- It is only appropriate to use “alternative fabrication” if you cannot afford to make appropriate, permanent changes, or if it is technically not feasible.
- You may be required to produce financials if you claim you cannot afford it.
“My landlord indemnified me”
- Landlord and tenant will most likely be jointly and severably liable for access claims by people with disabilities. And the procedure to apportion is costly.
“I was already sued and fixed all the items mentioned in the complaint.”
- A plaintiff can only seek changes relevant to their specific disability. So most lawsuits and settlement agreements do not identify all issues which can lead to claims.
- A qualified plaintiff with disabilities will normally have standing to compel the removal of all conditions which could limit accessibility if they return. Still, most plaintiffs only issue a complaint or two they observed which prompted them to file.