Why Commercial Enterprises Shouldn't Snub the Americans with Disabilities Act 

Sep. 17 2019 - Scott McNeice

The Risks Outweigh the Cost Savings 

According to the U.S. Department of Labor, 50 million Americans have disabilities, many of whom need special accommodations when shopping and lodging. The federal government isn’t leaving it to retailers, hotels, and shopping centers to decide what to do. There’s some pretty extensive and complex legislation to ensure the special needs of disabled citizens are met, and lately the Department of Justice and opportunistic third parties are keeping very close eyes on which companies and brands are complying. Want to retain your stellar public image? Keen to minimize or avoid costly lawsuits?  Committed to corporate compliance? These are all great questions, and if you answered “yes” to one or more of them, keep reading! 

What is ADA?

The Americans with Disabilities Act (ADA) was enacted in by the federal government in 1991 and provided widespread protection to citizens with disabilities. The Act requires businesses serving the public to remove physical barriers—regardless of building age or design—that limit or impair the experience of disabled customers. ADA has changed not only society’s view of people with disabilities, but also the responsibilities of commercial enterprises to provide adequate means for such individuals to actively participate in the marketplace. 

An accessible society is good for everyone, not just for people with disabilities. Just think:  The next time you find yourself at a big-box retailer, you can thank the ADA for those curb ramps, originally purposed for wheel-chair accessibility, but dual-purposed to allow you to successfully navigate that bulky cart (or stroller) from the raised side walk to the trunk of your car. 

The Business Operator’s Dilemma

There’s no doubt that ADA is a tremendous step in equality, and its benefits to society are undeniable. Of course it would be great if ensuring your own ADA compliance meant snapping your fingers and all your curbs and doorways would have the appropriate ramps, your public restrooms would be fitted with raised toilet seats and full-length mirrors, and your hotel pools would have the required sloped entries or lifts. But this is the real world, and we’ve got businesses to run. Facility modifications can often turn costly, cause disruptions to your traffic flow, and take a slice out of your bottom line. When your organization weighs the pros and cons of complete, partial, or non-compliance with ADA, where does it currently fit? And more importantly, where should it fall on the spectrum, and when should it implement changes?

There are two ways to approach ADA compliance: proactive or reactive. I’m not going to say which is right or wrong, but will simply point out there are some steep risks involved with complete non-compliance.

Beware of the Drive-By

For starters, did you know that there is an army of plaintiffs’ attorneys waiting to prey on the “deep pockets” of an unprepared hotel, retailer, or shopping center? Yes, they are lurking.  Well-organized law firms recruit and dispatch special-needs clients to exploit deficiencies in each and every location in your company’s portfolio. 

It all starts with a drive-by. What’s a “drive-by,” you ask? A good attorney can spot a pay day by simply driving by and looking at your parking lot and entrance. Where are the accessible parking spaces, and where are their signs? How many spaces are there, compared to the size of the lot? How are your customers getting from the parking lot to your front door? Any of these can be the first trigger to the plaintiff’s counsel that this location may have multiple deficiencies to report. It could be worth the lawyer’s time to further investigate since they’re likely to collect on a claim. Jackpot! 

Enter the DOJ

While the Department of Justice doesn’t directly dispatch its own auditors, they do get involved when a lawsuit is brought to them by either a private party or the Attorney General. In the case of the former, the DOJ can administer court orders to stop discrimination, and a “reasonable attorney’s fee” may be awarded. 

But in the case of a suit brought on by the Attorney General on behalf of the general public, the DOJ can award substantial sums. In fact, in March 2014, the DOJ increased its civil monetary penalties to adjust for inflation--the first inflation adjustment since 1999. Penalties for first- time violators were increased from a max of $55,000 to $75,000, and for second-time violators, from a max of $110,000 to $150,000.

What Should Your Enterprise Do to Comply?

This is the big question! It can be a tough decision to make. Do you continue operating as normal, and hope you don’t fall victim to the drive-by or a DOJ case? Best case, if you do get sued, it will likely result in a settlement anyway, so chances are you won’t be out an exorbitant sum. Worst case, it becomes a civil matter and you’re liable for tens of thousands of dollars in damages. But either way, your non-compliance will be on public record and could potentially damage your brand.

Alternatively, do you dive in and make a potentially large investment in coming into compliance with ADA? And if you do decide to take a proactive approach, what other capital investments that work towards improving the customer experience will need to be put on the back burner temporarily or indefinitely?

We Can Help

We have advanced ADA assessment capabilities to analyze current compliance, potential risk areas, and general drive-by exposure. We can help you develop a practical approach to ADA compliance and prioritize projects to minimize financial and business disruption and any potential DOJ penalties and class action lawsuits. We also strive to help you provide a better customer experience for disabled and non-disabled consumers alike.