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Despite the fact that the lawyers and disabled individuals that sue to enforce the Americans with Disabilities Act access provisions are often characterized as bad apples by the media, sometimes, the small businesses that are inaccessible are actually the ones in the wrong. And while that may be an unpopular opinion in the business community, it’s mainly due to the fact that non-compliance is still widespread and ADA access litigation is costly.
In short, by characterizing the disabled individuals seeking to enforce the ADA access laws as exploitative, businesses and media are minimizing discrimination against disabled individuals, and that’s just not right. Agree or not with how ADA litigation comes around, below, you can read about why small business can benefit by proactivly fixing any alleged ADA violations. In the end, it can be the most business savvy alternative to a lawsuit.
Nearly 30 years ago, Congress issued a mandate explaining that disabled persons are entitled to full and equal access to the goods and services provided to the public. Congress explicitly stated that architectural barriers are a form of discrimination because they impede disabled individuals from accessing goods and services fully and equally. Some states have tried to limit access cases that arise under parallel state laws, but in the end the ADA is federal law, and that trumps state law.
ProTip1: Along with the ADA access laws, there are tax credits and benefits available to businesses that spend money on disabled access remediation (remodeling) each year.
Simply put, if a disabled person cannot park at your business, or get through your front door, then a "drive by" is a foreseeable result. Yes, small businesses do close due to litigation. But access litigation isn’t the only reason small businesses close, and the costs of access litigation shouldn’t be blamed on the disabled individuals who are often left to enforce a law that is rarely enforced by the government. By design, the ADA was created in a way that spared the tax-payers the burden of paying for businesses that violate the Act. The law was written to put the burden of enforcement upon the businesses that fail to comply. It may be a harsh outcome, but it is the current law.
To avoid costly litigation and negative PR, small businesses should consider promptly fixing any access violations. Do an audit of your space; what problems do you see? If the business owner is the one to address any issues before being sued, he or she may be able to spread out fixes to maximize tax benefits (mentioned above) and skip paying the penalty for having ADA compliance forced upon them.
ProTip2: Because the ADA provides attorney fees to the plaintiffs, the more businesses fight, the more they may end up paying in both their attorney fees and the plaintiff's attorney fees.
ADA compliance can be costly, but avoiding a lawsuit is not the only benefit. Letting your local community know that you are proactive about access and welcoming to all your customers can bring benefits to your business reputation. And that is priceless.
Meeting with a lawyer can help you understand your options and how to best protect your rights. Visit our attorney directory to find a lawyer near you who can help.