As Americans, we often hear that we are a society that is way too litigious. People are filing frivolous lawsuits left and right for the stupidest things, ostensibly just to make a quick buck. But what many people don’t understand is that sometimes filing a lawsuit is the only way that people with disabilities can force businesses into compliance with the American with Disabilities Act (ADA). I see ADA violations almost every single time I stay in a US hotel. Of course, sometimes a kind word, some polite encouragement, or letter may also do the trick. But when you’ve done everything you can to ensure your rights to equal access and things just aren’t working out, here are some tips for when, why, and how you should file an ADA lawsuit.
Know your rights under the ADA
So many wheelchair users and people with other disabilities have no idea of all the rights they are entitled to under the Americans with Disabilities Act. Sometimes businesses count on this lack of knowledge to get out of forking out money for modifications to their properties that are required by law. They assume that if no one complains, they don’t have to fix it. Take some time to go through the ADA guidelines so that when you travel or are out and about in your community, you can spot these blatant violations and know when a lawsuit is appropriate.
Make sure there is an actual ADA violation
To the naked eye, we actually probably miss a considerable number of violations because a grab bar may be a few centimeters too high or too low, doorways may be an inch too narrow, etc. That’s not what I’m talking about here. I’m talking about a roll-in shower layout in a hotel room that is so bad that you can’t bathe at all; a website that allows users to buy tickets to a concert online, but then requires wheelchair users to call in order to purchase accessible seats; a store or restaurant built after the 1990s with only steps to enter or no accessible bathroom. Fortunately, it is easy to review ADA guidelines on their website to determine if a violation is actually occurring. The most common ADA violations you will come across when traveling in the US include roll-in shower configurations, online hotel booking engines, and parking space configurations.
Make sure an ADA lawsuit is your last resort
Some people might disagree with me on this one. The argument is that American businesses have had almost 30 years to comply with the ADA, so why should we give them the luxury of even more time by being nice? However, I firmly believe that you catch more flies with honey than vinegar. If you come across an ADA violation, talk to the manager or the owner of that business or facility first. Chances are they may not even know that there is a problem because no one has pointed it out to them before. There is a chance they may remedy the problem with no further action required by you. If it’s difficult to talk to someone in charge in person, you can also write a letter or have your ADA attorney write a letter to the property owner. This is common in cases where there is a parking lot violation and it’s difficult to find the property owner, or where the plaintiff wants to avoid a confrontation. It’s common to advise the property owner in your letter that you hope they would take the appropriate action in order to avoid a lawsuit so they know what the next step will be if they do not comply voluntarily.
Find an ADA attorney with proper jurisdiction
Once you’ve determined that an ADA violation has clearly occurred and you would like to file suit, will need to find an attorney who specializes in disability rights law. That attorney will need to have jurisdiction in the geographical area where the violation has occurred. You will not need to pay the attorney one red cent, as they receive compensation from the entity in violation of the law if a settlement is reached, or if the violator loses in court. Because of this, generally speaking, ADA attorneys will not accept cases unless they think there’s a fairly good chance that a settlement can be reached.
Have realistic expectations of the outcome
With the exception of a handful of states, there is no monetary payout to the plaintiff in an ADA lawsuit. In other words, the goal of an ADA lawsuit is always remediation of the problem, not financial compensation. Based on the terms of the settlement, if one is reached, the company may only have a couple of months to fix the problem or as much as a year depending on their defense. This can be frustrating if it is a business that you frequent regularly or have plans to visit regularly in the future. However, if you sue a business in your local area, you can always check up on the progress, as there are mechanisms in place to make sure they are abiding by the terms of the settlement.
Be diligent about responding to paperwork needs and attorney requests
Your ADA attorney will complete and file all of the legal paperwork, like affidavits and complaints, on your behalf. However, after the suit has been filed, the defendant may come back with several questions to determine if a violation exists, and if so, its extent. Make sure you respond to these requests in a timely manner or it may drag out the process unnecessarily.
Communicate with your ADA attorney about publicity
Sometimes it can be helpful to have media attention for your lawsuit, as it can bring a considerable amount of awareness to a major accessibility problem. However, you don’t want information online or on social media platforms to interfere with the ability for you to reach a settlement with the defendant. Make sure you discuss any plans to post updates about your lawsuits or work with local media with your attorney before going public. If your lawsuit does go public, be prepared for negative comments from people who feel you are simply whining or complaining over what they perceive as a minor inconvenience. Most Americans don’t understand how ADA lawsuits work, why we have to resort to them to ensure access, and that they don’t involve money.
Sylvia – “Ya dun pretty good” with your comments about ADA lawsuits for someone with no experience in filing them. I’ve been involved in more than 5,000, as a plaintiff’s expert, as a defendant’s expert, and as a plaintiff myself. The only addition I’d make is hotels now understand their ADA obligations 100%. So any barriers encountered at any hotel is willful disregard for the ADA. Keep up this good reporting, girl.
I’m lucky I have a good attorney who explains the process to me in detail every time I use him for a lawsuit :).
This is exactly why the DOJ needs to step in and take out attorney/client lawsuit incentives. I also think bad attorneys and clients should be sanctioned with huge fines for filing bogus ADA lawsuits. There are some ADA cases that may hold some merit, however, when the attorney/client files one ADA lawsuit after another, then this is not about ADA, it is more about making money by abusing the system.
Thank you for the information. Very helpful.
How do you find a ADA attorney
in Orlando area ??
Richard Malanowski
407-694-4029
Email
[email protected]
Google?
How about beds in hotels etc that are too high? We recently were traveling with our son adult who is a full paraplegic. The beds in the ADA room in two different hotels were at his shoulder height. He could not get in by himself and it took both his father and me, along with a rather ingenious use of the ironing board to get him in. To get out, he just fell down and we caught positioned him as he was falling. (His father and I have passed retirement age and can no longer pick him up.)
I understand the reason behind the higher beds – the cleaning crew probably break their backs changing the linens on all those beds every day, but some allowance should be made for someone who can not stand, I would think.
I hate the idea of a lawsuit. With all due respect, the only winners are the lawyers. Is there some other way to get this resolved? Writing each hotel company would become a massive undertaking, and we are only one voice.
Bed height does not fall under the ADA, so unfortunately, it’s an issue that likely won’t get resolved.
You can ask the staff to remove the box springs so that the transfer is manageable. I have had them offer to remove the bathroom door when no accessible rooms were available. In my experience staff has always accommodated my requests.
There have been a few times where I was at a diner and I had to use a restroom but couldn’t because the stall wasn’t big enough to fit my power chair in. Is there anything I can do? I always wonder how I can fix the situation so no one else has this problem.
You can ask management to bring it up to code. if they don’t, you can sue.
I encounter this so frequently it’s almost a joke. My son has had so many cancellations with doctors because of accessibility issues. Can buildings be grandfathered in so they do not have to comply?
There is no such thing as a grandfather clause. The accommodation that needs to be made must be “reasonable,” meaning that the business must be able to afford it. If they can prove that they can’t, then they get a pass.
I filed a complaint last year against a hotel that had not saved the accessible room we had reserved for Christmas Eve, effectively ruining our holiday plans. I opted for mediation, and we had three telephone conference calls to discuss the issue and figure out what had happened, who was responsible, etc. At the end, a resolution was proposed, and I was given the choice to accept it or to pursue further legal action. I asked for a condition: While bed height was not the focus of this mediation, it is a CONSTANT and significant problem, so I agreed to the resolution on the condition that the hotel would ALSO address the bed height issue and make sure *some* of their accessible rooms had lower beds. They were unaware it was a problem since bed height is not specified by the ADA, but undertook to make the change.
I’ll be visiting the hotel next month (on their dime), so my fingers are crossed that the appropriate changes have been made! Sometimes dialogue (verbal, between real people, not just names on letters) and the opportunity to explain the problem really is the best way to get something done. It is a shame that the responsibility falls to us, ourselves, but that’s the law. If we all are willing to take on a small fight when we encounter a violation, though, we can help ourselves AND each other.
Great article. Learned a lot. Thank you.
Today I visited a major national retail store to buy some clothing. I asked the sales person to show me where the dressing room was. When I arrived I noticed that none of the dressing rooms were accessible. The doorway wasn’t even wide enough to let me go into the dressing room with my wheelchair. I spoke with the manager who told me that there was a hallway where I could try on the clothing. Note this hallway is not a private hallway just at the time nobody was using it. I was very offended and returned the clothes and left. I’m offended for 2 reasons first because this major store does not have accessible dressing rooms and second because how offencive the manager was. I really would like to take the store to task and sue them. Any thoughts?
Can someone please recommend a good ADA lawyer in the Jackson, Tennessee or West Tennessee area?