ADA Compliance & Defense
Lewis Brisbois’ Employment Practice includes attorneys around the country who assist business owners and operators in achieving and maintaining full compliance with the Americans with Disabilities Act (ADA) and applicable state and local disability laws, and defend those clients when they are sued for allegedly violating those laws. Our clients have included small businesses, restaurants, ecommerce businesses, sports facilities, theaters, museums, and Fortune 500 companies with nationwide real estate portfolios, as well as government entities. The litigation practice defends claims that allege that physical places of public accommodation are inaccessible and is increasingly focused on claims that websites are inaccessible to persons with vision and hearing disabilities. While many of the cases we defend are pending in either federal or state courts, we also regularly handle pre-suit disputes and matters before the United States Department of Justice (DOJ) and various federal, state and local administrative agencies.
It is a reality that business owners in today’s marketplace are under ever-increasing scrutiny with regard to ADA compliance. Disabled individuals, the DOJ, and advocacy groups for the disabled can and do assert claims against business owners to enforce compliance with these often complex laws and regulations, and expensive litigation can ensue. Our first priority is to assist clients in examining their entire enterprise from top to bottom to ensure that they are fully compliant with applicable regulations. We also have participated in accessibility audits that cover the latest ADA standards for commercial and government facilities. In that capacity, we work with reputable and experienced accessibility consultants, who assist in assessing our clients’ properties, websites and policies, identifying potential shortfalls in compliance and recommending expedient, cost-effective solutions. Our attorneys have presented on accessibility issues at various conferences and webinars for clients, industry groups and insurers.
Areas of focus for our compliance practice include:
- Accessibility and architectural features that may act as access barriers in areas such as restrooms, meeting & banquet rooms, hotel guest rooms, parking lots & structures, recreation facilities, and walking paths
- Barriers hindering accessibility to communications and services including absence of auxiliary aids like Telecommunications Relay Services (TRS), speech outputs, closed captioning, adequate accommodation of service animals, and Braille signage
- Electronic barriers that hinder access to digital content, websites, online reservation systems, public electronic terminals such as ATMs and ticketing mechanisms, as well as the developing technologies pertaining to these systems
- Experiential systemic barriers that hinder disabled individuals from achieving access to public services and accommodations, including inadequate staff procedures and training programs, and inadequate internal policies
We have successfully defended clients in a wide array of ADA-related matters from pre-litigation through appeal. Our goal is provide expedient and efficient representation, focusing first on preventive measures, settlement negotiation, and alternative dispute resolution when appropriate. When appropriate, we settle accessibility disputes with consent decrees so that the clients will have some protection against copycat claims. Our representative cases include:
- Prevailing at a jury trial on behalf of a café accused by a physically disabled patron of operating an inaccessible facility
- Defeating a motion for a permanent injunction that would have required overhauling the in-person and electronic patient communication process across a healthcare system comprised of 11 hospitals across 13 campuses and hundreds of clinic locations staffed by more than 33,000 employees
- Prevailing on a motion to dismiss a claim that our client’s website violated the ADA based on a preexisting consent decree in a previously filed case alleging that the client’s mobile app was inaccessible; the federal court agreed that the broad consent decree – which by its terms applied to both the client’s websites and mobile apps - barred a copycat case and held that the plaintiff would have to seek leave to intervene in the first action and prove that the client violated the terms of the consent decree
- Successfully defending a Department of Education complaint on behalf of a university accused of Rehabilitation Act and ADA violations by a campus visitor and theater patron
- Securing a dismissal for a hotel on ADA and California Unruh Act claims alleging inaccessibility of third-party booking websites and insufficient identification of accessible rooms (the case was brought by a disbarred Arizona attorney who is notorious for bringing lawsuits against small businesses claiming minor ADA violations)
- Prevailing in the 9th Circuit Court of Appeals, which affirmed the district court’s ruling that plaintiff could not recover attorneys’ fees after a negotiated settlement for barrier removal and damages at a skating rink
- Prevailing at a federal jury trial on behalf of a cafe client after presentation of plaintiff’s case based on the proper application of DOJ regulations.
- Prevailing on multiple motions for summary judgment and pre-answer motions to dismiss in favor of retail clients based on various defenses including mootness and standing
- Inducing the plaintiffs in several website accessibility cases to voluntarily dismiss or accept nominal settlements based on the fact that the websites could not have sold their products to the plaintiffs, based on either government restrictions on the sales of certain products to certain states or the limited geographical scope of the deliveries that were feasible of the client’s products
- Inducing the plaintiffs in website cases to voluntarily dismiss based on the fact that the clients were in the business-to-business sphere and, as such, their websites were not places of public accommodations for consumers; and based on lack of jurisdiction