Let’s explore a few real-world scenarios that highlight potential legal pitfalls for business owners:
- You own a small restaurant. One day, your business faces a lawsuit alleging the parking lot is not ADA-compliant.
- You operate a hotel booking website. The website is threatened with legal action for failing to disclose whether a particular hotel offers accessible rooms.
- You’re a commercial landlord leasing space to a movie theater. Suddenly, you must defend a lawsuit because the theater tenant failed to post proper signage for accessible restrooms.
You’ve been diligent – but now you’re being sued for what appear to be technical violations of the Americans with Disabilities Act (ADA).
Businesses across the country – including in Florida – have been unexpectedly targeted by lawsuits alleging violations of Title III of the ADA. Many of these suits are brought by so-called “testers”: individuals who actively seek out accessibility violations with the intention of filing lawsuits. As a business owner, it’s essential to understand how these lawsuits work – and how to reduce your exposure.
Who Are ADA “Testers”?
ADA testers are often individuals with disabilities who intentionally search for violations of accessibility standards – either at physical business locations or on websites. Once they identify a potential issue (such as non-compliant parking, inaccessible websites, or lack of appropriate signage), they file a lawsuit, even if they never intend to patronize the business.
Which Businesses Are Most at Risk?
Tester lawsuits commonly target:
- Retail stores, restaurants, medical offices, and other service providers with alleged shortcomings in ADA-compliant entrances, parking, restrooms, or signage;
- Hotel websites that do not provide sufficient detail about accessibility features;
- E-commerce platforms and small business websites that are not compatible with screen readers or other assistive technologies.
Importantly, both landlords and tenants may be named as co-defendants in accessibility lawsuits – even when the violation stems from the tenant’s use of the space.
How to Protect Your Business
Mitigating your risk starts with a proactive approach. Consider the following steps:
- Conduct a Comprehensive Accessibility Audit: Retain an ADA compliance expert to evaluate your physical premises – entrances, parking, restrooms, signage, and internal routes – to ensure they meet current ADA standards.
- Ensure Website Compliance: Websites and mobile apps should comply with the Web Content Accessibility Guidelines (WCAG). This is especially critical for businesses in hospitality, retail, healthcare, or e-commerce.
- Use Strong Lease Language: If you are a landlord, include clear indemnification provisions in your leases that require tenants to assume responsibility for ADA compliance in leased areas.
- Enhance Your Online Reservation Systems: For hospitality businesses, federal law requires hotel reservation platforms to include accurate and detailed information about accessible rooms and amenities.
- Train Your Staff: Employees should be educated on how to assist customers with disabilities and understand the business’s obligations under the ADA.
- Assess Legacy Buildings: If your property was built before ADA regulations took effect, consult legal counsel to determine whether it may qualify for exemption or exception clauses to the regulations.
- Maintain Documentation: Keep detailed records of your efforts to identify and correct accessibility barriers. Documentation can be a key defense strategy – demonstrating good faith or even establishing mootness if the alleged barrier has been remedied.
If You Receive a Demand Letter or Lawsuit
Do not ignore it. Even if the claim appears frivolous or opportunistic, failure to respond can result in a default judgment against your business.
Instead, promptly consult with experienced legal counsel. A qualified attorney can:
- Assess the legitimacy of the claim;
- Identify available defenses;
- Help resolve the issue strategically, minimizing cost and disruption to your operations.
In today’s legal landscape, even diligent business owners must be vigilant. Understanding the risks of ADA tester litigation – and taking thoughtful, preventative measures – can help you stay focused on what matters most: running your business.