Dana Barton

The Rocky Mountain ADA Center is one of 10 federally-funded technical assistance centers in the United States tasked with providing information, training and guidance on the Americans with Disabilities Act. Located in Colorado Springs, we provide services in a six-state region: Colorado, Montana, North Dakota, South Dakota, Utah and Wyoming. The services we provide help businesses, state and local governments, community organizations and people with disabilities understand their rights and responsibilities under the ADA.

The ADA, signed on July 26, 1990 by President George H.W. Bush, was the first comprehensive civil rights law to prohibit discrimination against individuals with disabilities. Broken into titles, the ADA gives guidance for employers (Title I), state and local governments (Title II), places of public accommodation (Title III), and telecommunications (Title IV). The law ensures people with disabilities have an equal opportunity to participate in public life.

Individuals from all walks of life, from different industries and with varying objectives contact RMADAC to receive guidance on how to implement the ADA to ensure that people with disabilities are integrated into mainstream life to the maximum extent possible. Because this law is complex and because disabilities are complex, we receive many inquires from businesses seeking counsel. We find that business owners often believe that the ADA is costly, cumbersome and challenging to implement.

To make matters worse, over the past five years, there has been a rise in litigation surrounding violations of the ADA throughout the nation. There was a 34 percent rise in ADA-related litigation from 2017 to 2018, according to a report by Seyfarth Shaw LLP. Through our own research, RMADAC found that ADA lawsuits doubled in Colorado from 2016 to 2017.Frequently dubbed “drive-by” lawsuits, these legal suits are filed in district court on behalf of a plaintiff and allege various violations of accessibility.

In some cases, these lawsuits have been filed by an out-of-state plaintiff who is a regular complainant. For example, one plaintiff filed 71 nearly identical lawsuits in Colorado District Court in 2017, while another plaintiff filed 64. Common violations center around general accessibility to a physical environment, access to accessible bathroom features such as toilets, sinks and soap dispensers, as well as inadequate parking and ramps. Most recently, lawsuits have centered around inaccessibility of websites, with many courts ruling in favor of the plaintiff.

In these cases, the attorney and plaintiff seemingly “drive-by” locations and look for minor infractions, sometimes without entering the place of business. From there, the attorney sends a letter to the business asking for compliance and a monetary settlement. Businesses unfamiliar with the law are quick to pay the settlement and correct the infraction, rather than embark on a lengthy litigation process. Cash in hand, the attorney and plaintiff often never circle back to ensure the infraction has been corrected. In addition, businesses only correct the items listed in the suit without taking stock of other areas that may be at risk for further litigation. Even then, the “corrected” items remain out of compliance.

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What business owners should know is that enforcement of the ADA does not entitle the plaintiff to monetary damages but could include attorney’s fees. Receipt of a demand letter can lead to a negative impression of the ADA. Paying settlement can add to the cost of ensuring accessibility for people with disabilities.

The best defense is proactively evaluating your business (to include your website) and correcting any infractions before someone has the chance to sue you.

Tax incentives are available to encourage compliance with the ADA and to assist business owners. The Small Business Tax Credit assists with expenses to include barrier removal, providing auxiliary aids and services, and accommodating employees. The Architectural/Transportation Tax Deduction allows for all businesses to seek a tax deduction on barrier removal projects like widening doors and adding compliant building ramps.

All businesses seek to mitigate their risk of lawsuits, but ADA compliance is regularly overlooked. We encourage businesses to become educated about the ADA and related compliance guidance, such as the 2010 ADA Standards for Accessible Design. RMADAC offers free online training on a variety of topics such as Title III, 2010 ADA Standards, and Web Content Accessibility Guidelines. In addition, our information specialists are available to answer questions on a daily basis.

Dana Barton is the director of the Rocky Mountain ADA Center. She can be reached at dbarton@mtc-inc.com.