Think you dodged a bullet if you own a business and haven’t been slapped with an Americans with Disabilities non-compliance lawsuit?
Guess again.
The federal Justice Department in 2015 plans to post official compliance requirements for commercial websites and apps. Based on a legal agreement the Justice Department reached in March with H&R Block involving a lawsuit filed against them by the National Federation of the Blind concerning website accessibility issues those are likely to include:
• spoken descriptions of photos.
• the addition of captions and transcriptions of multi-media content.
• offering options to navigate online pages without the use of a mouse.
It would mean that businesses could be sued for non-ADA compliance without a customer even stepping into a brick or mortar store. In fact, online businesses with non physical presences from mom and pop operations in homes to Amazon would have to comply or be open to litigation.
In every state but California that means whoever sues can’t collect punitive damages but if the business being hauled into court is found not to be complying they’d have to pick up the plaintiff’s legal costs as well as their own. Consider the coming regulations the Justice Department’s Full Employment Act for Lawyers.
In California, ADA plaintiffs can seek a minimum of $4,000 in punitive damages for each non-compliance issue.
It gets better — for money hungry plaintiffs and attorneys.
The 11th Circuit Court of Appeals in November 2013 determined that someone doesn’t have to even patronize the business in order to sue it for non-ADA compliance.
For now, the vast majority of such lawsuits are in California, New York, and Florida. There were 1,939 such lawsuits in the year ending June 30. It represents a 55 percent jump over the previous year when 1,254 lawsuits were processed.
Last year there were 2,719 lawsuits that ended in settlements based on a study of court records by the law firm of Seyfarth Shaw that’s based in the nation’s capital. That’s up 9 percent from the previous year when 2,495 settlements were reached.
The jump in lawsuits follows on the heels of the Justice Department releasing a new round of regulations two years ago.
Those new rules included an exact height for towel racks in restrooms. Also among the list is a new requirement that all hotels with pools provide a “pool lift” for disabled guests.
The one nice thing — if you want to call it that — about the pending Justice Department rules regarding websites is the fact online only retailers and other sellers of products are no longer immune for ADA lawsuits.
Probably no one embraces a world that makes life hard for the handicapped. But even so, the assumption that 24 years should be enough time for businesses to comply ignores the fact there are endless regulations governing businesses. Nor or businesses protected from being sued if they get the big picture but come up short on minute details such as the precise height of towel racks or if the handicapped parking stall stripe paint has faded too much. It doesn’t matter that they comply with handicapped parking, have accessible restrooms, and ramps and doors that comply. They must meet every last requirement down to the precise measurement or else they can be sued.
In California, that can mean a big pay day for the person filing the lawsuit.
Real reform would make needed changes without making lawyers rich and without lining the pockets of litigants in California.
One way to do it would require local government to conduct once a year ADA compliance inspections much like they do fire inspections. A punch list of items that aren’t in compliance would be provided to the property owner and/or businesses.
The property owner or tenant would have 60 days to devise a strategy to make corrections. If the strategy isn’t filed as an action plan, they would be subject to automatic fines of perhaps $100 a day.
The local jurisdiction would review the plans and give the cited business a timetable to make the improvements. A sliding scale could be developed on the project cost in relationship to the businesses’ annual receipts to determine how long they have to make the improvements.
Failure to make improvements by assigned deadlines would result in automatic $100 per day fines for each item not in compliance.
Fines would help finance the compliance inspections.
Such a system would assure compliance which 24 years of ADA law and thousands of lawsuits haven’t come anywhere close to accomplishing.
Lawyers don’t get rich and opportunistic serial lawsuit filers are cut out of the picture.
That way the ADA rules will be enforced fairly and a mechanism put in place to make sure the needed work gets done.
That is the real goal the system should pursue instead of one that doesn’t guarantee compliance and makes a few people wealthier by exploiting handicapped access concerns.
This column is the opinion of executive editor, Dennis Wyatt, and does not necessarily represent the opinion of The Bulletin or Morris Newspaper Corp. of CA. He can be contacted at dwyatt@mantecabulletin.com or 209.249.3519.
