Title III of the Americans with Disabilities Act (ADA) of 1990 prohibits disability discrimination in places of public accommodations. 42 U.S.C. § 12182(a). Under the law, establishments such as restaurants, hotels, retail / shopping centers, health care providers, private schools, daycare centers, parks, etc., must have facilities that are accessible to persons with disabilities.
While the ADA has had very positive impacts on those with disabilities, it may also be abused for the sole purpose of financial gain. A “drive-by lawsuit” originates when an individual or plaintiff’s attorney who visits a business not as a legitimate customer, but to find obvious and/or often minor ADA violations. He/she sends a demand letter to attempt a speedy settlement, but if unsuccessful, commences legal action against the company. These predatory practices result in increased stressors and legal fees that burden companies and even drive them out of business.
In response, the ADA Education and Reform Act of 2015 (H.R. 3765) was introduced on October 20, 2015, by Representative Ted Poe (R-Texas) among others. H.R. 3765 prohibits a person from sending a demand letter alleging Title III violations if the notification does not specify the circumstances under which an individual was denied access. The legislation prohibits filing an ADA lawsuit unless (1) individual provides written notice to the owners and/or operators that specifically identifies the architectural barrier, and (2) business fails to respond with a written description of proposed improvements, or fails to remove the barrier, or make substantial progress. This is positive for business owners who may not realize they are out of compliance, allowing them opportunities to correct these issues before being subjected to protracted and costly negotiations or litigation.
H.R. 3765 strives to develop programs to educate governments and property owners about disability access to public accommodations, in addition to creating programs to promote alternative dispute resolution (ADR) to resolve these cases.
Business owners are encouraged to stay up-to-date and comply with the ADA’s accessibility guidelines and consult legal counsel with any questions.