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. 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 happenings to 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.
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 vinegar than honey. 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.