The Americans with Disabilities Act: How to Handle the Troll Under the Bridge
Many of us are aware of the story of the Troll under the Bridge. This story portrays a Troll that lives under a bridge and requires a toll from all who want to use the bridge. This classic fable carries with it some painful truths for those who want to conduct a business and come into contact with an Americans with Disabilities Act (“ADA”) lawsuit.
Just like the troll under the bridge, there are individuals and groups who demand a toll to do business: an ADA lawsuit. These tolls come in the form of cookie-cutter lawsuits filed in the thousands across the country alleging violations of the Americans with Disabilities Act, the Federal law designed to protect disabled individuals from discrimination based on accessibility to a business. The LA Times reports that almost 5,000 ADA lawsuits were filed in the first six months of 2018 and projected 10,000 total for the year. The evidence suggests that the number will be larger in 2019 and 2020. In an effort to make businesses equally accessible to all individuals regardless of disability, this Act has unfortunately also created the opportunity for individuals to take advantage of businesses by filing trivial ADA lawsuits in the thousands—many against hotel properties.
This article will discuss the basics of the Americans with Disabilities Act and the three main areas of troll litigation under the ADA, how these troll litigators typically operate, and what companies can do to minimize the likelihood of being caught in one of these lawsuits.
Basics of the ADA
The Americans with Disabilities Act, enacted in 1990, seeks to ensure equal access to employment, services of public entities, and public accommodations for private entities. The standard target for these cookie-cutter troll lawsuits is generally involves an allegation that some public accommodation is not equally accessible to people with certain disabilities. The ADA does not provide damages for these violations, but the real financial concern is that the Act requires the losing party to pay the victor’s attorney’s fees, which often amounts to thousands of dollars for plaintiff’s attorneys.
The real area of litigation involves three types of lawsuits, (1) barriers to access to the public accommodation such as an office, hotel room, or restaurant table; (2) inaccessibility of the website for a specific disabled person, most commonly someone who has a visual or audio impairment; and (3) service animals.
One major area of litigation by these troll lawsuits alleges barriers to access to the public accommodation. The ADA Accessibility Guidelines (ADAAG) provide specific guidelines for a public accommodation to satisfy in order to be sufficiently accessible under the ADA. These Guidelines provide such specific details as the height of the coat hook in the handicapped restroom, the height of the bathroom sink from the floor, the pressure required to open a door, and many others. If a business fails to satisfy these guidelines, there is a strong presumption that they are in violation of the ADA. It is no small task for a business to follow all of these Guidelines, and there are expert architects and contractors who make it a business to confirm that publicly accessible companies comply with the guideline measurements.
Unfortunately for many companies, however, by the time they are aware of a violation of the Guidelines, it is already too late. There is no requirement to tell a company about the violation before filing the lawsuit, and so most companies first find out about the violation in the complaint filed with the lawsuit. So before the company even knows about the problem, it is too late to avoid being caught up in litigation.
A second major area of troll litigation is website accessibility. This area of litigation is growing more and more in the digital age, where people are interacting with businesses entirely online without requiring a physical location. Recently, the Ninth Circuit Court of Appeals held in Robles v. Domino’s Pizza, LLC that the ADA applied to websites and mobile applications because the ADA mandates that places of public accommodation provide auxiliary aids and services to make visual materials available to individuals who are blind. Robles, a blind man, sued Domino’s Pizza alleging that he could not order a customized pizza from Domino’s website and app utilizing his screen-reading software. The Ninth Circuit held that the inaccessibility of Domino’s website and app impeded access to the goods and services of the restaurant, and so the ADA applied. The Ninth Circuit also held that Domino’s Pizza’s constitutional challenge was without merit. The United States Supreme Court declined to consider the Ninth Circuit’s decision, and so companies should consider the ADA as applicable to websites.
Lawsuits involving website accessibility are worse in many ways to those involving physical accessibility, because there are no clear guidelines established to ensure that a website is in compliance with the ADA. The Department of Justice has issued the Web Content Accessibility Guidelines, which are often cited to as the standard for compliance for website accessibility, but these guidelines are complex and are not formally recognized as the standard. Some of the Web Guideline requirements include providing “alternate text” to every image in a website to allow visually impaired people to understand the context of the images, captions for audio content, and high-contrast color schemes for the visually impaired.
Another significant area for heavy ADA litigation is the allowance of service animals. One major issue that arises regarding the use of service animals is whether an alleged service animal is actually an emotional support animal and not covered by the ADA. The ADA specifically excludes animals that are used for comfort from the definition of “service animal,” but certain mental health issues, such as anxiety, Post-Traumatic Stress Disorder, and others can be addressed by a specifically trained animal and would thus fall under the definition of service animal. Therefore, although this area of litigation is the most clearly defined by the ADA, it is still an area that businesses should be especially cautious of, because an increasing number of patrons are attempting to categorize their emotional support animals as service animals and are suing businesses based on a misunderstanding of the ADA, which can lead to increased costs and headaches for businesses.
How the Troll Lawsuits Work
Troll lawsuits operate by alleging that an individual has a disability and that the current business, whether the physical location or website, is preventing them from accessing its services because it fails to follow the applicable guidelines. The individual does not even need to actually be harmed by the barrier, as long as he alleges he could not access the accommodation. For example, a disabled individual who enters a hotel or restaurant bathroom and measures that the sink is too low for him to access with a disability can file, and likely win, an case based on this trivial violation of the ADA.
Because the plaintiff does not need to notify the company before filing, the first notice the company receives is the complaint initiating the lawsuit. At this point, because of the ambiguities in the ADA discussed above and the heavy amount of facts involved in any case under the ADA, the plaintiff knows that the company will not be able to get out of this case easily, and is now stuck “between a rock and a hard place.” If there is any violation at all, it is likely that the company will be required to pay the attorney’s fees, which grow with every step forward in the case. Even if there is absolutely no violation, the company still will have to prove its innocence by presenting evidence in the case, which will cost time and money.
For this reason, the plaintiff knows that there will be a high likelihood of settlement. That is why these troll plaintiffs file a high number of cases—the more cases they have, the greater the likelihood of receiving settlement amounts.
There are several examples of these troll litigation schemes, but on of the most famous operations came out of Arizona, where a single attorney filed almost 2,000 cases in two years and intended to file at least 8,000. The alleged violations for these cases included trivial issues, such as minor height violations for handicap accessibility signs, or slight variations in measurements in other areas. The documents filed in each of these cases were the exact same, down to the same typographical errors. It became so severe that Arizona businesses called for change, and the Arizona Attorney General’s office sought to dismiss over 1,000 of these cases and alleged that this attorney be sanction. The court dismissed the lawsuits, and some also granted sanctions against the attorney and the plaintiff.
Unfortunately, this was not before the attorney received settlement funds from many of these lawsuits. Such lawsuits generally seek no less than $5,000 in attorney’s fees. Many businesses, especially those who budgeted for litigation settlements pay the settlement as a “nuisance” simply to have the threatened lawsuit be concluded, but some small businesses were not as willing to pay up, and sought the Arizona Attorney General’s assistance.
Although this story ends with the Arizona businesses finding a resolution to these serial lawsuits, countless serial litigants are still patrolling businesses and asking for tolls under the guise of ADA suits; but there are some things that companies can do to avoid being caught on the proverbial bridge of an ADA lawsuit.
What You Can Do
Because of the vast number of lawsuits, most businesses have either been involved in a lawsuit like this or know a business that has, so there is no avoiding these lawsuits in general, even if the business is in full compliance, thanks to the ambiguities in both the ADA and in the guidelines. The best way to minimize the likelihood of getting caught in these lawsuits is by ensuring that your company complies with the applicable guidelines under the ADA, the ADA Accessibility Guidelines, last updated in 2010, and the Web Content Accessibility Guidelines, which is currently on version 2.1. Although there are companies that offer compliance reviews for both of these guidelines, a first step is to review the guidelines as a company and confirm that there are no major issues likely to be caught by a potential litigant making its rounds of local businesses. If a company finds that there are several issues that do not comply with the ADA guidelines, it is best to contact a professional architect, contractor, and/or IT firm to ensure that the business is in complete compliance with the necessary guidelines.
As to physical barriers, the Company should do an audit with the guidelines to ensure that they meet the requirements. Once the Company confirms that the business meets the guidelines, it is likely that it will be passed up by any potential litigants. For websites, some general tips for avoiding these lawsuits include (1) having an accessibility policy posted on the footer of the main page; (2) providing accessible alternatives, such as a staffed telephone line or an online chat function, for individuals to access your services; (3) having your primary webpages regularly audited using a variety of screen readers, operating software, and hardware; and (4) designating a person within your organization to be your accessibility coordinator.
Concerning service animals, the Company should train their employees to ask two questions when interacting with a potential service animal or emotional support animal: 1) does this animal serve a disability and 2) what specific function does the animal provide. Any other questions can lead to potential technical violations of the ADA. If the animal is only for emotional support, the Company is under no obligation under the ADA to allow the animal on the premises.
The Americans with Disabilities Act creates several potential issues for companies trying to provide services to the public, but by following the steps provided above, your business can minimize the likelihood of being caught on the bridge by a troll litigant, seeking its toll.
Fred Preis and Philip Giorlando represent numerous hospitality industry clients throughout the United States in labor and employment matters and have effectively counseled numerous businesses in handling Americans with Disabilities Act issues. Fred is a charter member of the AHIA.