Applicability of Title III of the Americans with Disabilities Act
The Americans with Disabilities Act (ADA), 42 U.S.C. ß12101, enacted in 1990, has by now become familiar to most employers. It is common knowledge these days that Title I of the ADA applies to employers with 15 or more employees and prohibits employers from discriminating against employees or applicants on the basis of handicap or disability. Title I of the ADA allows handicapped employees who prove they have been discriminated against by their employers to obtain damages from the employer for lost past and future wages, mental suffering, and punitive damages.
Business owners with fewer than
15 employees, or who otherwise are sure that they do not discriminate against employees on the basis of handicap, incorrectly believe that they are immune from ADA purview. These employers could not be more wrong. Many are simply unaware of the compliance provision of the ADA, which can have a profound effect on the business and its finances. Title III of the ADA provides 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 by any person who owns, leases (or leases to) or operates a place of public accommodation." [42 U.S.C. ß12182(a)] Congress delegated to the Department of Justice (DOJ) the responsibility for issuing regulations to enforce this mandate. [42 U.S.C. ß12186(b)] Accordingly, the DOJ, in conjunction with the Architectural and Transportation Barriers Compliance Board (Access Board), issued ADA Accessibility Guidelines for Title III of the ADA.
Title III of the ADA: The public accommodations requirement
Title III applies to all businesses and nonprofit entities that provide a service to the public, including facilities or buildings that are open to the public. Unlike Title I of the ADA, Title III has no limitation on number of employees. Title III applies to every area of "public accommodation," from the corner grocery store to multi-billion dollar complexes and other facilities that fall within the "public accommodations" provision of Title III. Under Title III, building owners, managers, and lessees are required to make sure the facility does not discriminate against the handicapped by creating or maintaining any barriers to access to the public service. Handicapped individuals are persons who have a mental or physical condition that significantly affects a major life activity, such as walking, hearing, seeing, talking, or caring for oneself.
Title III requires that buildings meet certain architectural standards, such as doorways wide enough to accommodate wheelchairs, Braille signs, handicapped access ramps, wheelchair-accessible restrooms, and other features designed to remove any barriers that deny equal access to public facilities. Even public telephones must be of a certain height to allow their use by handicapped individuals. Covered individuals may include employees of the business if they are using the facilities as members of the general public rather than as employees. For example, a handicapped waiter or waitress may eat at the restaurant and may well claim that the restaurant's restrooms do not comply with Title III of the ADA even though the employee has not suffered any employment discrimination. The complaint is based on the employee's status as a patron of the restaurant, not as an employee.
Some employers may not realize that Title III of the ADA applies to all areas of "public accommodation." While the meaning of this term may seem clear, the line between public and private is a gray area at best. Obviously any store, restaurant, movie theatre, convention center, doctor's office, or other such facility open to the public is an area of public accommodation. What is not so clear is when an area is deemed by the business to be private in nature, such as an office suite or a private organization. These business owners may believe they are exempt from Title III because of their private status or the limited access to the involved areas. The problem is that the courts tend to take an expansive view of what is public vs. private. For example, an apartment building may be a public accommodation because the apartments are open for rent to the public and may have been advertised in a newspaper. Office suites may be public areas if the business requires or allows members of the public to use its facilities or see employees in their offices or at their desks. Last year a federal court determined that a professional golfer was entitled to the protection of Title III of the ADA because a private golf course during a professional golf tournament is an area of public accommodation. Even the area behind a restaurant counter may not be private if the restaurant allows customers access to any part of the area to obtain water, refill sodas, or simply use it as a pass-through to the restrooms.
Amending Title III of the ADA: Providing businesses with notice
Title III does not require any advance notice to a business of the intent to file suit for alleged violations. Plaintiffs in Title III cases do not receive damages as a result of any proven violation, but they may be entitled to an injunction requiring modification to the facility plus the plaintiff's attorney's fees. This means that the attorney's fee clock begins to run immediately, before the business has an opportunity to correct the alleged violations. Some businesses believe that Title III should have a notice provision to allow businesses to evaluate the extent of the allegations and, where necessary, bring the facility into compliance.
An article in the May 9, 2000, edition of The Wall Street Journal, page 22, discusses a Title III claim brought against actor Clint Eastwood, alleging that his historic Mission Ranch Hotel in Carmel, California, did not comply with Title III. The fact that Title III provides no opportunity for compliance caused Mr. Eastwood to spearhead a new law that would amend Title III. The proposed amendment, H.R. 3590, would allow businesses 90 days to comply with Title III after being notified of potential violations before the attorney's fees can begin accumulating. H.R. 3590 is still pending in legislation. Opponents of the amendment fear that Congress may take this opportunity to make wholesale changes in the ADA and perhaps increase the exposure to businesses or limit some rights of the disabled. It does not appear that H.R. 3590 will be enacted into law anytime soon, so for the present businesses need to be aware of these Title III issues.
The costs of noncompliance with Title III
The costs associated with Title III compliance are not inconsequential. The actual construction charges will vary from business to business and from deficiency to deficiency. The attorney's fees also will vary greatly, based on the amount of time plaintiff's attorneys have expended on the case. Obviously, the more resistance to the lawsuit from the defendant business and the more time it takes to get the lawsuit resolved, the higher the eventual attorney fee will be. The attorney fee will apply only if the plaintiff proves a case of Title III noncompliance or if the matter is settled in a manner that shows the plaintiff actually did prevail on the claim.
In Small v. Michael's Restaurant, 2000 U.S. App. LEXIS 7739 (2000), a group of wheelchair-bound plaintiffs successfully sued a restaurant for Title III compliance violations. The court awarded the plaintiffs $54,414 in attorney's fees and costs, which was upheld on appeal. In Mr. Eastwood's case the amount of attorney's fees claimed by the plaintiffs is approximately $577,000, over and above the costs associated with modifying the hotel. Businesses with a number of different facilities that are similar in design, such as strip malls, may find that a Title III claim is being presented to each separate facility. Whether the business will be able to join all of the lawsuits and limit the potential attorney fee award to one, or will be exposed to an award for each lawsuit, remains to be seen.
Conclusion
Whether or not H.R. 3590 becomes law, Title III of the ADA presents a significant financial exposure to all businesses that provide any services to the public. The costs associated with complying with Title III, when coupled with attorney's fees, are significant. All business owners who believe they may affected by Title III should contact an attorney familiar with Title III compliance to determine the best course of action. This should be done sooner rather than later--when a lawsuit has been filed and the attorney fee clock is running. The attorney may advise the business to conduct a self-assessment audit of the facility to identify any deficiencies with respect to Title III. Under another section of the ADA, this self-assessment is a requirement for municipalities to discover and address any Title III deficiencies before a claim arises. The attorney can best advise the business on all issues surrounding the self-assessment audit, including the possibility that the plaintiffs during litigation may discover the audit report. The attorney may advise the business that discovery of the report is not a significant risk as Title III compliance is really an objective standard: either the facility complies with Title III or it does not. For some businesses a Title III complaint is simply a matter of time because their facilities are, in fact, not in compliance. For these businesses the costs of compliance may be more manageable without the added expense of attorney's fees. *
The author
Bruce R. Fox is an employment attorney in Boston, Massachusetts, representing employers and insurance companies. He is director of legal services at AMR Research, Inc., an adjunct professor at Suffolk University and a frequent
contributor to national law journals. He has lectured extensively on employment law matters to risk managers, claims managers and corporations.