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ADA Title III lawsuits can drain the time, energy, and financial resources of business and property owners. If sued for violation of the ADA, hiring an experienced ADA Title III attorney is critical to the result that you will ultimately achieve. ADA defendants sometimes make a mistake by seeking representation from a corporate lawyer, or from their regular legal counsel, rather than a law firm with significant ADA experience. But hiring someone who is unfamiliar with ADA cases can result in prolonged litigation, and a more expensive final result. Experienced ADA attorneys are familiar with the ADA landscape, and have proven, time-tested methods for efficiently resolving ADA lawsuits. 

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Getting the right information and the right lawyer is extremely important. An experienced ADA practitioner, like those associated with this law firm, will be happy to review all the facts of your case, and articulate a strategy for ending the lawsuit as quickly and cheaply as possible. 

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We have defended business owners in hundreds of ADA Title III lawsuits, and our Managing Partner, Nolan Klein, has taught multiple courses on how to litigate ADA claim, and has appeared as an ADA legal expert on 60 Minutes. We will be more than happy to share our thoughts about your case, and the direction in which you should go.  

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• ADA Physical Barriers Cases 

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The Americans with Disabilities Act (ADA) requires that “places of public accommodation” make reasonable accommodations for individuals with disabilities, including compliance with very specific architectural requirements. The most common accommodations include installation of disabled parking spaces, restaurant seating, accessible bathrooms, ramps, and other such features needed to integrate the disabled. The term “place of public accommodation” applies to a very wide variety of businesses including (but not limited to):

• Inns, hotels, motels, and other places of lodging;

• Restaurants, bars, and other food/drink establishments;

• Auditoriums, convention centers, lecture halls, and other places of public gathering;

• Gymnasiums, spas, bowling alleys, golf courses, and other place of exercise or recreation.

• Theaters, concert halls, stadiums, and other place of exhibition or entertainment;

• Bakeries, grocery stores, clothing stores, shopping centers, and other sales establishments;

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The ADA also applies equally to landlords and tenants, making each jointly liable for ADA violations that are present on the property. Tenants may be sued even though alleged violations are on property controlled by the landlord (for example, a parking lot), and landlords may be sued for alleged violations in a tenant space (for example, inaccessible restaurant seating). As a result, the business owner, and its landlord (the property owner) are almost always sued together in these cases. 

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If the ADA applies to your business or property, that does not automatically mean that you are responsible to make every requested change. For buildings completed prior to passage of the ADA, and which have not been altered since the ADA was passed, changes only have to be made if readily achievable. The term ‘readily achievable’ means accomplishable without undue difficulty or expense. In determining whether something is readily achievable, various factors are to be considered, which we will be happy to discuss. 

If your business has been sued for alleged violation of the ADA, contact us for a free consult. 

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• ADA Website Lawsuits 

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The ADA states that “no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation . . .”

The definition of “place of public accommodation” was traditionally thought of as a physical place, for example a bar, restaurant, or theater. But a number of cases have now deemed “place of public accommodation” to include a website through which purchases are made. Accordingly, a wave of ADA lawsuits have been filed in recent years against businesses that conduct commerce through their website, where the website is not accessible to the visually impaired. 

Blind and visually impaired internet users (who are disabled under the ADA) have a number of options for “reading” their computer screens and using online commerce features. One of the most widely used and popular is the “job access with speech” program, popularly referred to as JAWS. For JAWS and other such programs to work on a particular website, the website must be programed for compatibility with the system. If it is not, then the visually impaired cannot gain access to the website content, or use its online commerce features. 

 

The most widely accepted website technical standards for compatibility with screen reading software is Version 2.0 of the Web Content Accessibility Guidelines, commonly known as WCAG 2.0. These guidelines, when implemented on a website, make the website usable by individuals with visual impairments, and the guidelines have been adopted on the websites of many (if not most) major online retailers. 

 

If your business has been sued based on alleged non-compliance with the ADA on its website, the allegations, most likely, are that the website does not comply with the WCAG 2.0 standards, and is therefore not accessible to the visually impaired. There are a number of defenses available in these cases, which we will be happy to discuss, based on the specific facts of your case. 

If your business has been sued for alleged violation of the ADA, contact us for a free consult. 

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• ​Hotel Reservation Websites (subpage to ADA page)

 

In 2010, the Department of Justice issued new ADA regulations requiring that “with respect to reservations made by any means” hotels must ensure that individuals with disabilities can make reservations for accessible guest rooms during the same hours and in the same manner as people who do not need accessible rooms. These regulations require that any means by which hotels take reservations must “identify and describe accessible features in the hotels and guest rooms . . . in enough detail to reasonably permit individuals with disabilities to assess independently whether a given hotel or guest room meets his or her accessibility needs.”

 

Over the course of the past year, multiple courts throughout the U.S. have ruled that these requirements apply to websites through which hotels take reservations. We have litigated hundreds of these cases, and are happy to advise hotel clients on how to best comply with these legal requirements, and on the most efficient and cost effective manner for dealing with these cases when they arise. There are a number of defenses available in these cases, which we will be happy to discuss, based on the specific facts of your case. 

If your business has been sued for alleged violation of the ADA, contact us for a free consult. 

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• ADA Employment Issues 

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ADA claims against employers are increasingly common. In order to establish a case of discrimination under the ADA, an employee must demonstrate that he is (1) disabled; (2) a qualified individual; and (3) was subjected to unlawful discrimination because of his disability. 

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The ADA defines “disability” as a physical or mental impairment that substantially limits one or more major life activities. In order to establish that he is disabled under the ADA, an employee must specifically demonstrate that a major life activity is substantially limited as a result of his disability. An employee cannot state a claim where the alleged disability does not substantially inhibit a major life activity (for example, walking). 

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In order to bring a claim for discrimination under the ADA, an employee must first file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC). This notification requirement serves to advise the employer of the allegations against it and allows that party an opportunity to participate in conciliation; generally, a party not given this appropriate notice may not be sued in a later civil action. 

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A charge of discrimination must be filed within three hundred (300) days after the claimant purports to have suffered discrimination. If the EEOC elects not to proceed with the case, then a lawsuit must be filed within 90 days after the EEOC issues a “right to sue” letter. 

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A central question in employment-related litigation, and in particular ADA litigation, is whether the claimant is an employee at all. In determining whether a claimant is an employee (as opposed to an independent contractor, or something else entirely), courts will initially look to any agreement between the parties. 

Where an employment agreement is unclear on whether claimant is an employee or an independent contractor for purposes of coverage by the ADA, some courts will apply a hybrid test to make the determination. Courts using this hybrid test will consider the extent of the employer’s right to control the means and manner of the worker’s performance. Additional factors considered by the court may include: 

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i. The kind of work, with reference to whether the work usually is done under supervision; 

ii. The skill required in the particular occupation; 

iii. Whether the employer or the individual in question furnishes the equipment used in the place of work; 

iv. The length of time during which the individual has worked; 

v. The method of payment, whether by time or by the job; 

vi. The manner in which the work relationship is terminated; 

vii. Whether annual leave is given; 

viii. Whether the work is an integral part of the business of the employer; 

ix. Whether the worker accumulates retirement benefits; 

x. Whether the employer withholds taxes; and 

xi. the intentions of the parties. 

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If the employee was disabled (as defined by the ADA), and was in fact an employee, the question then becomes whether a reasonable accommodation was requested, and if so, whether it was required. A disabled employee must request a reasonable accommodation before there arises any obligation to provide one. After the request is made, the question becomes whether the requested accommodation was mandatory. 

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A mandatory accommodation is a modification or adjustment to a job or to the work environment that will allow an otherwise qualified disabled employee or applicant to perform the essential functions of his or her job. Critical to the analysis of the requested accommodation is whether it will allow the disabled employee to perform the needed job for the employer. There is no obligation to provide a different job to accommodate a disability. 

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Analysis of ADA employment claims are complex and every case is different. If your business has been sued (or been the subject of an EEOC complaint) for alleged violation of the ADA, contact us for a free consult.