ADA Compliance, Litigation
One of the country’s foremost authorities on the Americans with Disabilities Act delivered an in-depth look at the law and how it is evolving at this year’s SPECS conference.
“The enforcement of the ADA has changed over the past 25 years and new areas that have risen to the top include point of sale, ATMs and websites,” said Joan W. Stein, president of Stein Consulting, at the “ADA Super Session.”
The standards for websites are not yet written into the ADA Standards for Accessible Design. But the U.S. Department of Justice and the courts are ruling against businesses for these elements if they are not usable by individuals with disabilities, warned Stein.
“The DOJ is drafting proposed regulations for websites that are supposedly coming out in June,” Stein added.
In other developments, there’s been significant growth in drive-by lawsuits, with advocacy groups and lawyers focusing on exterior areas and parking lots of chains.
Stein’s recommendation when a business gets hit with a complaint is to look at the entire business with respect to the areas that customers have access to. She recommended that the business work with its in-house counsel or outside adviser to develop two reports: one that addresses the items identified in the complaint, and the other an internal document that identified all other areas of your business.
“This puts you in a better position to push back if they know you are looking at the entire facility,” Stein said.
Stein noted that ADA Title III Federal lawsuits increased by 37% in 2016, with California and Florida accounting for the overwhelming majority. (The two states also are hotbeds of private litigation.)
In other changes, DOJ fines have increased, with the first violation now at $75,000 and all subsequent violations at $150,000. There is also the possibility of potential compensatory and punitive damages from the DOJ.
Pending legislation may offer some relief. In 2016, lawmakers in the Senate and House proposed the ADA Education and Reform Act, which is designed to, among other things, reduce the onslaught of lawsuits filed by serial plaintiffs by requiring them to give businesses notice of the alleged violations and an opportunity to correct them before filing suit.
“Those efforts stalled but may gain new momentum with a new administration that is sympathetic to the plight of small businesses and hostile to federal regulation,” Stein said.
When it comes to avoiding lawsuits and non-compliance, retailers should be in a state of constant vigilance, which means being familiar with federal regulations.
This includes addressing common ADA mistakes during the training of any associates responsible for maintenance and report. There should also be a review and revision of any written procedures and instructions that may impact compliance.
“One of the most common issues I find in retail are big divides between store planning, operations and marketing,” Stein said. “There has to be good communication between all three groups on this issue.”
Retailers can mitigate the risk associated with ADA compliance by staying ahead of the curve.
“Design it right, construct it right and maintain it right,” Stein advised. “And document it by taking photos.”
As to the return on investment for investments in making retail stores and sites ADA compliant, retailers should consider the size of the disability market: It’s the largest untapped group of U.S. consumers, composed of 56.7 million people.
“Also, by the year 2013, 71.5 million baby boomers will be over the age of 65, and demanding products, services and environments that address their age-related changes,” Stein added.