There are many legitimately disabled people living in the United States. The Americans with Disabilities Act (ADA) was created in 1990 to protect them from discrimination in the workplace, public services, public accommodations and telecommunication. Since then, the definition of disability and discriminatory practices have expanded. So have the number of lawsuits filed against businesses by customers, particularly relating to issues of accessibility or lack thereof.
If you’re a big company, you have the resources to stay on top of your exposure to the risk. But if you’re a small business, chances are you don’t. And that has made small business owners like you a target for ADA lawsuits. According to an April 2014 article on NBCBayArea.com, “The [NBC Bay Area] Investigative Unit reviewed more than 10,000 federal ADA lawsuits since 2005 in the five states with the highest disabled populations. More lawsuits have been filed in California than Florida, Pennsylvania, Texas and New York combined.” Small businesses, they report, are often caught between the threat of suits and the challenge of inscrutable building codes. They’re also a tempting target for serial filers. “Of the 7,188 federal ADA suits in California reviewed by NBC Bay Area, 4215 were filed by a plaintiff who’s filed at least 30 lawsuits.” Serial filers characterize themselves as civil rights activists. Others see them as opportunists.
A number of business insurance policies can provide coverage that lowers your risk exposure, along with legal assistance if you are sued. These include commercial general liability, errors and omissions insurance (E&O), EPLI (employment practices liability insurance) and umbrella coverage for small business. You can learn more about these coverage and get competitive quotes here. But your best course of action is to understand where you’re exposed and take corrective measures to avoid both legitimate and nuisance ADA lawsuits.
The reality is that given ever-changing ADA parameters at federal, state and municipal levels, it’s challenging for a business to be in full compliance. Something like using the wrong color of blue to designate a disabled parking space in your lot can land you in hot water. So can using the wrong shaped sign on a unisex public bathroom door or hanging a restroom mirror too high to make it visible from a wheelchair. Fines for small violations can run into the tens of thousands of dollars, according to SFGate.com. The website cited a San Francisco coffee shop owner who was sued for $87,000 for minor infractions that included a recycling bin blocking the restroom entrance. Even though the owner fixed the problems, the lawsuit went forward and was settled for $19,500!
Even your ATM machine can be a potential ADA liability. Amendments to the ADA made in 2010 specified that owners and operators of ATMs must modify new and existing units to provide improved access for the disabled by March 15, 2012. The compliance deadline was followed by a rash of class action lawsuits in Texas and Pennsylvania, largely targeting smaller banks and credit unions.
Compliance-Proof Your Business
Staying on top of changing compliance laws and keeping out of the cross-hairs of zealous serial filers/activists can consume a lot of time you’d probably rather devote to running your business. In addition to having adequate small business insurance to protect you from ADA claims, you can make a small investment and hire a certified access specialist. He or she can audit your property and your practices for compliance and document the process. In California, you’ll get an official state certificate for doing so. Check with your local EEOC office to see if your state has a similar program. You could also check with an architect in your area who is experienced with equal-access requirements. At bare, minimum, you can ask a disabled friend or colleague to assess your place of business for accessibility issues.
 “The Americans with Disabilities Act,” http://www.eeoc.gov/eeoc/history/35th/1990s/ada.html
 “California Outpaces Others States in ADA lawsuits,” http://www.nbcbayarea.com/investigations/California-Outpaces-Other-States-in-ADA-Lawsuits-disability-act-246193391.html
 “Is Your ATM Machine a Lawsuit Waiting to Happen?” http://adamusings.com/2012/08/17/is-your-atm-machine-a-lawsuit-waiting-to-happen/