awda lawsuits C D A J O U R N A L , V O L 4 9 , Nº 2
As a result of these factors, it is anticipated that the frequency of website lawsuits may soon far outpace that of physical access lawsuits.
Strategies for Minimizing Exposure Consult With Knowledgeable Attorney and/or Expert
It is advisable to seek advice from an attorney who has experience in advising on AwDA obligations and minimizing potential exposure to AwDA lawsuits. This can be an extremely difficult subject to navigate, so choosing an attorney with the requisite knowledge and experience is critical. An experienced attorney will also, when necessary, be able to help with retaining appropriate consultants. This will be either a certified access specialist (CASp) or architect to address physical access and/or a website designer to address e-commerce compliance. These experts can assist with determining the extent to which removal of physical or online barriers to access are required and formulate a plan for remediating any such barriers.
Prioritize Remediation of “Low-Hanging Fruit”
In determining how to prioritize removal of barriers, it is worth noting that the low-cost, high-turnover, high-profit business model of the unscrupulous plaintiff involves targeting the most easily identified barriers to access. It is for this reason that lack of properly configured and signed accessible parking is the most common allegation seen in AwDA lawsuits. If an accessible space is a few inches too narrow or if it lacks the appropriate signage or adjacent access aisle, it represents an invitation for a drive-by plaintiff to sue. On the other hand, if the drive-by plaintiff cannot readily identify an obvious target, they will typically move on. Therefore, 90 FEBRUARY
2021
the low-hanging fruit of nonaccessible parking should be addressed first. Next, give priority to providing access to the building from the parking lot or sidewalk. This will be accomplished with curb cuts, an entrance ramp and widening the entrance if necessary. Once inside, adequate space for a wheelchair to maneuver, minimum doorway width (32 inches) and an accessible (lowered) portion of the reception counter are all areas that are commonly litigated and which are usually deemed “readily achievable” to fix.
Give priority to providing access to the building from the parking lot or sidewalk.
Restroom accessibility is another issue that is very frequently the subject of a lawsuit. To the extent that accessibility can be improved with grab bars and repositioning of mirrors and dispensers, this should be done immediately. If the restroom doorway is less than 32-inches wide, it should be widened if possible. Other renovations involving significant construction or expense might not be required, and as discussed, this will be a relative question. However, the following examples of barrier removal illustrate the type of step that will usually be deemed “readily achievable” and therefore required: installing ramps; rearranging tables, chairs, display racks and other furniture; widening doors or installing offset hinges to widen doorways; installing accessible door hardware; installing grab bars in
toilet stalls; rearranging toilet partitions to increase maneuvering space; insulating lavatory pipes under sinks to prevent burns; installing a raised toilet seat; installing a fulllength bathroom mirror; repositioning the paper towel dispenser in a bathroom; and removing high-pile, low-density carpeting.32 As for website compliance, generally speaking, the more content that appears on the website, the more likely it will be in violation. Again, there will be certain low-hanging fruit on a website that can be fixed relatively easily and inexpensively and, while doing so will not eliminate all risk of a lawsuit, it will greatly reduce exposure to the click-by lawsuit. In this context, that means taking steps such as providing alternative text so that a text description is included for any images, providing closed captioning on video and ensuring that the website is easily navigable and fully usable with only a keyboard. This will typically involve editing the code and will require installation of software or employing a website developer who is familiar with the Web Content Accessibility Guidelines.
Business Considerations
In addition to the legal reasons to remediate barriers to access, consideration should also be given to the business reasons for doing so, including the following.
The Cost of Compliance vs. the Cost of Being Sued
It is important to note that regardless of whether the AwDA has been abused, it is the law, and the best strategy to avoid a lawsuit is to be compliant. While compliance can be expensive, many steps can be taken to improve access, many of which are far less costly than the legal fees that will be incurred in defending a lawsuit, even one without merit. One should also consider the loss of revenue that can result in a dental
