By Scott Baughman
The Daily Record Newswire
BOISE, ID — The U.S. population is growing substantially older, and the signposts of that graying are easy to spot—literally so in the case of some towns that have begun installing oversized street signs to accommodate the rising number of older drivers. Elsewhere, the demand for caregivers is booming, and there are even dating websites devoted to the senior citizen set.
The signs of a graying population are also showing up in the federal courts. In 2014, there was a surge of cases filed under Title III of the Americans with Disabilities Act, the section that bans discrimination in the accessibility of places of public accommodation, such as shops and restaurants. Although disabled persons are not necessarily old, an aging population is likely to lead to more folks with physical impairments experiencing the sort of obstacles that the ADA is designed to eliminate.
The federal courts break down ADA cases into two categories: those related to employment and “other,” the vast majority of which are public accommodation cases. Excluding employment cases, the number of ADA suits filed nationally grew incrementally from 2010 through 2013, and then accelerated markedly in 2014, climbing from 3,217 in 2013 to 4,920 in 2014 — an increase of more than 50 percent. (See chart.) Employment cases, conversely, have fluctuated and are down slightly from a peak in 2012.
Some of that is likely due to the increase in the number of disabled persons. According to the U.S. Census, 56.7 million people had some form of a disability in 2010, the most recent year for which data is available. That was an increase of 2.2 million over the number in 2005. As the ADA this year marks the 25th anniversary of its passage, ensuring access for the disabled has become an increasingly vital concern for businesses.
But attorneys for businesses that have found themselves on the receiving end of ADA lawsuits argue that the upswing has largely been driven by additional factors, particularly the enthusiasm of “testers”—plaintiffs who travel around to businesses to determine whether their facilities comply with the ADA, and then sue those whose businesses do not. A single “tester” and his or her attorney may end up filing lawsuits against dozens, or even hundreds, of businesses.
In order to have standing to sue a business under the ADA, a plaintiff must show that the alleged violation is causing him a real and ongoing injury. Courts in different jurisdictions have applied this rule with varying degrees of leniency. Florida courts, most notably, have taken a very permissive position on standing questions in response to a 2013 ruling by the 11th U.S. Circuit Court of Appeals.
The data from the federal judiciary does not break down the number of ADA cases filed in each state, but independent research published by the national law firm Seyfarth Shaw suggests that Florida was responsible for much of the increase in Title III suits last year, along with California, another state with law favorable to plaintiffs. Records show that Florida plaintiffs and attorneys have also filed a substantial number of Title III lawsuits in North Carolina in recent years.
Lonnie Player, an attorney in Fayetteville, N.C., described the case of a Florida woman who filed ADA lawsuits against several dozen businesses in North Carolina, claiming standing to sue based on a single, small purchase made at each establishment. Courts in North Carolina, Player said, have been more skeptical about granting standing to such plaintiffs.
“I think there has been an increase” in ADA lawsuits filed, Player said. “I think it has been reflected in North Carolina, though I think that the federal district courts here have done a good job being gatekeepers in terms of standing issues, and not allowing cases to proceed when the plaintiff is an out-of-state litigant who drives 500 miles to North Carolina and buys a Coca-Cola in order to show standing.”
Such lawsuits are typically resolved with a settlement, Player said, since businesses, especially one-off establishments, typically find it uneconomic to litigate cases to trial.
A search of federal cases filed in North Carolina does indeed show several serial litigants who have filed cases against multiple businesses. Most of the Title III lawsuits filed in North Carolina in the last five years could in fact be tied to a single plaintiffs’ attorney, Christopher Lane of Clemmons. Lane declined to comment for this story.
Some of the other plaintiffs’ attorneys who were contacted also declined to comment for this story, but attorneys who did comment reported getting frequent inquiries from disabled clients frustrated by the legitimate difficulties they faced in accessing the businesses they patronize.
Pete Monismith, a Pittsburgh attorney who has represented plaintiffs in several Title III cases filed in North Carolina, predicted that such lawsuits will likely continue to increase in frequency. Monismith noted that the increasing number of older Americans has created a market for transportation services tailored to their needs, so more disabled persons are able to get away from their homes more easily.
“As they get out more and more, I think you will certainly see an increase [in Title III lawsuits] when they can’t use a restroom, or they can’t sit at a table at a restaurant with their friends,” Monismith said. “On almost a weekly basis, I have someone call me and complain about issues they face, whether it’s parking, or trying to get into a bathroom, or trying to get a seat at a restaurant.”
Monismith said that often clients will ask him to write letters to businesses asking them to address accessibility issues, but such letters often fail to produce the attentive response that a lawsuit does.
Attorneys for both plaintiffs and businesses agreed that business owners would be well served to address ADA issues proactively by having a professional audit conducted to assess compliance issues. For businesses looking to spare the cost of a formal audit, the Department of Justice offers on its website a checklist of issues that proprietors should be mindful of.
“Being proactive about this means not waiting for somebody to come in who experiences a problem,” said Lisa Grafstein, managing attorney at Disability Rights North Carolina. “That kind of accessibility audit and checking compliance proactively is always a good idea. It’s not just a way to avoid lawsuits but also to demonstrate your openness to the disabled community, and that goes a long way.”
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