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Posted: April 22, 2019

Client Q & A: Three Questions To Ask If Your Business Is Sued For Being Allegedly Inaccessible To Wheelchair Users

Three Questions To Ask If Your Business Is Sued For Being Allegedly Inaccessible To Wheelchair Users

By Elizabeth Wolstein

The explosion of website accessibility lawsuits under the Americans with Disabilities Act (“ADA”) has been getting a lot of attention. These cases raise interesting legal, practical, and philosophical issues that we hope to address in future posts. For now, though, let’s spend a little time on the good old-fashioned brick and mortar ADA lawsuit. Stores and restaurants in New York City continue to be hit with these lawsuits on virtually a daily basis, from wheelchair-bound plaintiffs claiming they are being denied access to establishments due to entrances containing steps. If your business finds itself on the receiving end of such a lawsuit, here are three questions you can ask at the outset to help guide strategy.

Congress enacted the ADA in 1990 to “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1). The statute prohibits discrimination on the basis of disability in employment (Title I), in state and local government programs and services (Title II), and in the operation of places of “public accommodation” (Title III)—private businesses that serve the public. Anyone who owns, leases, or operates a “place of public accommodation” may not discriminate on the basis of disability in the provision of “the goods, services, facilities, privilege, advantages, or accommodations” made available by the establishment. 42 U.S.C. 12182(a). The statute identifies 12 categories of private entities that are public accommodations for purposes of the ADA, including restaurants, stores, theatres, hotels, gyms, schools, and all manner of service establishments. See 42 U.S.C. § 12181(7). If your business falls within one of these 12 categories, it is subject to the ADA’s non-discrimination madate.

That is the starting point. To know your business’s remediation obligations, however, you have to know two things. That brings us to the first two questions a business sued by a wheelchair user should ask.

Question 1: When was the facility built that I own/lease/operate?

The ADA sets different remediation standards depending on the age of the facility. If your facility opened for occupancy after January 26, 1993 (30 months after enactment of the ADA), it must be “readily accessible to and usable by” disabled individuals—the most demanding remediation standard. 42 U.S.C. § 12183(a)(1). As a practical matter, this means the business has to be accessible virtually without regard to the cost of making it so. Since the ADA has been on the books for almost 30 years, builders are by now used to constructing to ADA standards, and new buildings are less likely to be in the sights of the plaintiff ADA bar.

Not so for older buildings, of which New York has so many. If your facility was built for occupancy before January 1993, it is subject to a less onerous remediation standard, but with a big caveat discussed via Question 2 below. Facilities built before 1993 that have not undergone an “alteration”—this is the caveat—must remove architectural barriers to wheelchair access only where such barrier removal is “readily achievable,” that is, “easily accomplishable and able to be carried out without much difficulty or expense,” a determination to be made based on factors listed in the statute. 42 U.S.C. §§ 12181(9), 12182(b)(2)(A)(iv).

The caveat is critical to the business’s remediation obligations so let’s move on to question 2.

Question 2: If my facility was built for occupancy before January 1993, has it undergone an “alteration” after January 1993?

If you’ve been sued and your facility was built before 1993, this is the critical question to determining your remediation obligations, and knowing your obligations is central to developing a defensive strategy. Under the ADA, an older building that has undergone an “alteration” is subject to the same unforgiving accessibility standard applicable to new construction. “Alteration” being the critical question, Congress of course chose not to define the term. The statute provides some general guidance, stating that if an alteration “affects or could affect the usability of the facility or part thereof,” 42 U.S.C. § 12183(a)(2), it must be done in such a way that the altered portion of the facility is accessible to disabled individuals—the same standard that applies to new construction. Ask yourself whether your facility has undergone something like the following specified in the ADA regulations: “remodeling, renovation, rehabilitation, reconstruction, historic restoration, changes or rearrangement in structural parts or elements, and changes or rearrangement in the plan configuration of walls and full-height partitions.” 28 C.F.R. § 36.402(b). If the answer is yes, you will be subject to the remediation standard applicable to new construction, under which the potentially burdensome cost of compliance will generally not be a defense.

Question 3: Is my facility really a place of public accommodation as plaintiff claims?

Finally, don’t assume the plaintiff is correct in claiming your establishment is a place of public accommodation. Although the statute casts a wide net, a place of public accommodation is not anything with an entrance. A private club would seem not to fall within the definition, for example. But how about a private apartment building? Or a restaurant closed for renovations? There may be some grey areas that leave room for challenging the claim that your business is a place of public accommodation, proof of which is essential to establishing liability.

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