Articles Posted in ADAAG

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On our ADA Compliance & Defense Blog, we have written extensively about Americans with Disabilities Act (ADA) and California Unruh Civil Rights Act lawsuits. Many such lawsuits are filed by a small handful of serial plaintiffs and their law firms who actively seek out physical locations and websites of businesses that are allegedly not fully accessible. Once found, the plaintiff will sue the business and/or the landlord for disability discrimination. For example, a plaintiff might sue 3 businesses in a week because the accessible parking slope was above 2.1% or the website was not accessible for blind users’ screen reading software. In such cases, the plaintiff typically seeks injunctive relief (a court order requiring compliance), statutory damages of $4,000 per occurrence, and attorneys’ fees.

There are various defenses to such cases that my team and I explore when defending a client who has been sued. See my recent articles on that topic:

Common Defenses to Unruh Civil Rights Act and ADA Lawsuits (Part 1)

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Certain regulations become effective March 15, 2012. Hopefully, you are already working on bringing your swimming pools, wading pools and spas, golf facilities, fitness facilities, steam rooms, and saunas (and more — see below) into compliance with the 2010 Standards for Accessible Design (specifically the 2010 Standards for Public Accommodations and Commercial Facilities: Title III), which were adopted by the Department of Justice on September 15, 2010 as part of the revised Regulations of the Americans with Disabilities Act (“ADA”). Compliance with the 2010 Standards become mandatory for certain properties and certain elements of all properties as of March 15, 2012.


What is the standard and what facilities are affected? Title III of the ADA requires that each “public accommodation” remove architectural barriers where “readily achievable.” No property will be “grandfathered” (even if built prior to 1990; i.e., the implementation of the ADA). There is no “safe harbor” applicable with respect to those elements in existing facilities that are subject to supplemental requirements (i.e., elements for which there are neither technical nor scoping specifications in the prior 1991 Standards). By way of example only, the following elements of a public accommodation must be modified to the extent “readily achievable” to comply with the 2010 Standards:

  1. Exercise machines and equipment.
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On July 23, 2010, the U.S. Attorney General signed into law important revisions to the Department of Justice’s Regulations implementing the Americans with Disabilities Act. The new regulations also include substantial and far reaching revisions to the Americans with Disabilities Act Accessibility Guidelines (ADAAG), which are now known as the 2010 ADA Standards for Accessible Design (2010 Standards). On September 15, 2010, the new Regulations/2010 Standards were published in the Federal Register, thereby triggering two important implementation periods.

Compliance with the new Regulations will be required commencing on March 15, 2011, with the exception of (1) the new obligations of hotels to modify their reservation policies relating to individuals with disabilities, and (2) the 2010 Standards; these two components become mandatory one year later, on March 15, 2012. However, compliance with the 2010 Standards is permitted as of September 15, 2010, and any public accommodation or commercial facility that is newly constructed, altered, or undergoes “readily achievable barrier removal” prior to the March 15, 2012, effective date of the 2010 Standards should include consideration of the new standards and incorporate them as appropriate.

The new DOJ Regulations/2010 Standards affect all U.S. hotels, financial institutions, shopping centers, retail stores, recreational facilities, and other properties such as restaurants that are a classified as a “public accommodation” or a “commercial facility” under the American with Disabilities Act of 1990 (ADA).

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ADA Compliance perspective

With the increasing importance of ADA compliance for hotels, restaurants, and other public places, we are lucky to have a team that can help set up ADA compliance approaches and programs to minimize later issues on new construction, rehab, and defense of ADA claims from the government or private litigants. Our team is led by Marty Orlick, a seasoned veteran who has seen ADA issues tested in defending more than 300 ADA lawsuits, many of them involving hotels, restaurants and hospitality facilities.

Marty stresses that our role is not avoid the ADA, but rather to help clients interpret the often murky requirement to understand what their obligations are and develop reasonable plans for compliance that are likely to meet the test of future challenge.

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Target Corporation was sued under the ADA for inaccessibility of its website

We gave you an early heads up about how lawsuits brought under the Americans With Disabilities Act (ADA) can target your website or online reservation system . . . and what you should do about it now. (See “How your company’s website can make you a target for ADA lawsuits”.)

Now there is much more.

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The ADA Compliance and Defense Blog asks Marty Orlick, Chair of JMBM’s ADA Compliance & Defense Group about ADA litigation involving pool lifts

ADA lawsuits regarding pool lifts sound like a very specialized and narrow category of claim.  Is this a threat of any real significance?

Last year, I would estimate that there were 50-100 ADA lawsuits in California alone, involving pools for hotels, health clubs and spas. I personally handled 5 ADA lawsuits involving hotel pools in 2006.

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As most hotel owners and operators know, the Americans With Disabilities Act (ADA) prohibits discrimination on the basis of disability by “public accommodations,” including places of lodging. This requires facilities to be designed, constructed, and altered – where “readily achievable”– in compliance with the accessibility standards as set forth in the Americans With Disabilities Act Accessibility Guidelines (ADAAG).

The ADAAG standards – last revised in 1994 – are being amended by the Access Board, Department of Transportation and the Department of Justice (DOJ). It is expected that the proposed ADAAG standards will be adopted substantially as drafted.

The hospitality industry has been keenly interested and involved in this process. For example, at one point, the Access Board proposed that 50% of all guest rooms be made accessible with hearing impaired devices. But industry experts estimated the economic conversion cost at nearly $3,000 per room, and in the final version of the Access Board’s proposed guidelines, the requirement has been lowered to 9% of all guest rooms.

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