After a long day of depositions with my “go-to” accessibility expert (who uses a wheelchair), I took him to an acclaimed restaurant in Washington, D.C., for a fine meal and libations. When the time came for him to use the restroom at this refurbished and popular restaurant, he found that none of the luxurious stalls were accessible—and not just in technical violation of the Americans with Disabilities Act (ADA). Luckily for the restaurant, he was with a defense lawyer and not a plaintiff’s lawyer.
Another time, as I entered the building housing the U.S. Department of Justice’s Accessibility Division, which enforces the public accommodations aspects of the ADA, the front mat was noticeably non-compliant, and would have easily tangled up in a motorized wheelchair.
Twenty-five years after the ADA's enactment, many places of public accommodation still have serious accessibility deficiencies. Title III of the ADA, covering places of public accommodation including restaurants, is violated every day—even by those with the best intentions. The real challenge is to find a place of public accommodation without any ADA violations.
A Surge in Accessibility Claims
There have been no significant changes to the public accommodations portion of the ADA statute or the regulations since 2010, and yet public accommodation claims under Title III of the ADA are rising. The Wall Street Journal reported that, in 2014, Title III lawsuits increased by nearly 55 percent. In addition to private Title III lawsuits, the Justice Department, which, along with private plaintiffs, enforces Title III, reports having received 6,391 complaints for fiscal year 2015. This represents a 40 percent increase over the number of accessibility complaints for 2014.
For years, restaurants have been targeted with a high proportion of accessibility suits. The principal types of claims affecting full-service restaurants stem from access barriers to individuals with mobility impairments, including persons using wheelchairs and denial of service to persons with service animals. Website accessibility claims against restaurants by patrons with visual disabilities are also likely to grow, as website accessibility claims have exploded against other places of public accommodation in retail, healthcare, theaters, and more.
An Ounce of Prevention
Rather than wait for a lawsuit or a demand letter from a plaintiff’s attorney, or perhaps even the Department of Justice, restaurants can be proactive to help guard against claims and become accessible to more patrons through four simple steps:
1. Get it Right the First Time
When you are constructing a new restaurant, don’t assume that your construction department, architects, or builder will produce an error-free, fully accessible unit. Using a knowledgeable accessibility expert to review construction plans and the execution of those plans can help avoid the need for more expensive and disruptive re-construction if barriers are found after the restaurant opens.
2. Assess Vulnerability and Barriers
Along the same lines, an accessibility expert reporting can spot barriers in existing facilities and develop a prioritized remediation plan for eliminating known barriers. Having and following an existing and thorough remediation plan can eliminate any future accessibility claims over barriers already being addressed. A good offense is a sound defense.
3. Train and Re-Train Staff
Has all of your staff in customer contact been trained on basic ADA etiquette, and particularly on the highly limited questions that can be asked of a patron with a service animal (i.e., is the animal a service animal required because of a disability? And what work or task has the animal been trained to perform?)? The best policies and intentions are easily undermined by a staff unaware of their (and your) obligations. Ensure your staff understands what they can and cannot ask and periodically retrain them for a refresher.
4. Don’t Forget Your Website
Do you have a website describing your menu, location, and hours? Can customers use your website to make reservations? Even in the absence of regulations (which have been expected for years), the Justice Department and plaintiffs’ advocates take the position that websites that are an extension of a brick-and-mortar public accommodation must also be accessible. Courts have taken varying approaches on this question. In the absence of definitive standards, this becomes complicated. But complying to the extent practicable with the current World Wide Web Consortium’s Web Content Accessibility Guidelines, which among other things makes web content compatible with assistive software used by individuals with individuals with vision impairments, should discourage future claims.
With a sound approach, restaurants can help reduce costly litigation, minimize disruptions from re-construction, and open themselves to a broader customer base.
