ADA Suits Against Retailers Are Way Up

The Americans with Disabilities Act

The Americans with Disabilities Act (ADA) https://ada.gov/pubs/adastatute08.htm is a Republican initiative dating back to 1990. It essentially extends civil rights protections to individuals with disabilities similar to those accorded individuals on the basis of race, color, national origin, age, sex, and religion. The ADA guarantees equal access and opportunities to covered individuals in employment, transportation, state and local government services, telecommunications, recreational facilities, and public accommodations.

Retailer Vulnerability

Retailers who have not complied with the ADA are sitting ducks for such lawsuits. These are businesses that are used daily by customers, which translates to (1) a huge number of potential plaintiffs, and (2) a huge number of violations of the Act. There are thousands of provisions that lend themselves to potential violation. Costs of such lawsuits are enormous. ADA litigation is very expensive to begin with, as the Act provides for “reasonable attorneys’ fees to the prevailing party.” Moreover, defendants must hire and pay their own attorneys and, if they lose the case, must pay for the design and retrofitting of any mandated modifications to their facilities.

The most common ADA violations are non-compliant entryways, public restrooms, fitting rooms, and access to upper and lower floors.

Trends: Since its enactment, the number of ADA enforcement actions undertaken by the Justice Department has grown exponentially. Similarly, private suits are also way up. A violation of any one of the Act’s thousands of provisions can increase a retailer’s potential liability for either a private lawsuit or a DOJ enforcement action.

Caveat: The one hesitation you might have about all in for this practice is that retailers may be going the way of the Dodo and Passenger Pigeon, meaning that they could be hurtling toward extinction. In just the last four years, more the 400 retail chains have closed their doors—including some very iconic names—victims of the online purchasing revolution. You can expect this to continue. But in the meantime, you can make some very nice hay while the sun still shines.