Title III of the Americans with Disabilities Act (“ADA”)
February 14, 2018
By: John Chindlund
Title III of the Americans with Disabilities Act (“ADA”) prohibits discrimination by owners or operators of Places of Public Accommodation (“PPA”) (e.g., restaurants, bars, convenience stores, hotels, hospitals, etc.) on the basis of disability in the full and equal enjoyment of goods, services, facilities, and accommodation.
Such discrimination includes the failure by PPAs to comply with the Accessibility Guidelines for Buildings and Facilities, set forth in 36 CFR 1191.1, Appendices B and D. These Guidelines are very detailed and set forth a wide range of building requirements, including, for example, the minimum height for accessible parking space identification signs and the minimum and/or maximum heights for a variety of other items, including mirrors over lavatories and towel dispensers in public restrooms.
In recent years, there has been a significant increase in the number of suits filed against owners and operators of PPAs alleging discrimination on the basis of violation of the detailed requirements of the Guidelines.
In these suits, a prevailing plaintiff is entitled only to injunctive relief (an order of the court directing that the specific non-complying access barriers, be remediated to comply with the ADA), and not monetary damages. In addition, Title III of the ADA permits the court to award a “prevailing party” a reasonable attorneys fee, including litigation expenses and costs.
Owners and operators of PPAs should be aware that a plaintiff is not legally required to notify them of an alleged illegal barrier to access before filing suit.
However, a defendant who brings the non-complying barrier to access into compliance and establishes that the access barrier is not reasonably likely to recur, can likely obtain a dismissal of the case on the ground that the plaintiff’s claims have been rendered moot, resulting in the court losing subject matter jurisdiction in the case.
In addition, even though a defendant who voluntarily terminates the conduct the plaintiff challenged might effectively give the plaintiff all of the relief he seeks, the courts have held that in order to be a “prevailing party” under fee shifting statutes (such as under Title III of the ADA), the plaintiff must secure a judgment on the merits or a court-ordered consent decree.
By voluntarily remediating non-complying ADA barriers to access, an owner or operator of a PPA can likely obtain not only a dismissal of the case, but also prevent plaintiff’s counsel from recovering attorneys fees.
In cases where a plaintiff continues to litigate after it becomes clear that the barriers to access have been eliminated, courts have awarded attorneys fees to the PPA owner or operator.
John Chindlund practices employment and labor law, representing employers in all issues pertaining to the employer-employee relationship.
He handles matters involving the National Labor Relations Board, the Equal Employment Opportunity Commission, the United States Department of Labor, and the Utah Anti-Discrimination and Labor Division.
Mr. Chindlund also represents employers regarding matters under the Employee Retirement Income Security Act (ERISA) including defending withdrawal liability claims.
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