Lawsuits filed against small businesses accused of violating the Americans with Disabilities Act, or ADA, are on the rise.
According to web compliance provider Usable.net, more than 16,000 lawsuits accusing companies of failing to comply with ADA rules have been filed since 2020, most of them against companies with revenues of less than $25 million.
Some of these cases, originating from so-called serial followers, could be considered abuse of the system. For example, in Oregon, a man admitted to receiving about $600 a month to visit local businesses and then sued them for handicap access violations. More than two dozen lawsuits were filed by a California woman seeking damages from small businesses that allegedly violated the ADA. And in Philadelphia, a man has sued more than 30 food and beverage establishments throughout the region for failing to meet various ADA requirements.
“Some law firms are notorious for finding problems where there aren’t any,” Marc Levy of The 215 Guys, a Philadelphia-based website design firm, wrote in a blog post earlier this year. “In most industries, regulations would be enforced through inspections and corrections, but the ADA is enforced through litigation.
However, many cases have merit, and small business owners need to be aware of how to comply with the ADA.
ADA requirements for small businesses
Often, small business owners mistakenly believe that the facilities and practices they had in place before the ADA will be allowed to continue simply because they are before the law, said Sharon Caserta, an attorney at Morgan & Morgan in Philadelphia. “This is usually not the case.”
Caserta says the ADA applies to almost all small businesses and that compliance takes different forms.
“It’s not only the architectural features of your business, but also through policies that ensure that customers with disabilities can access your small business’s services, such as your website,” she said.
According to Joseph D. Lento of the Lento Law Group in Philadelphia, there are four main areas that small businesses need to focus on in order to be ADA compliant, the first of which is physical accessibility. The law requires businesses to have accommodations such as wheelchair ramps, elevators, and accessible restrooms, and to have removed structural barriers that prevented or obstructed access and navigation.
“Ensuring your small business is physically safe for customers and employees remains an important aspect of ADA compliance,” he said.
A lesser-known aspect of the ADA is providing effective communication, which includes providing assistive devices and services such as sign language interpreters or TTY (teletypewriter) devices.
One recent aspect of the ADA is the Web Content Accessibility Guidelines, which were updated earlier this year.
“Companies, in order to comply with this provision, must ensure that their websites are visible, functional, understandable and robust,” Lento said.
Finally, it is important for small business owners to be aware of the employment provisions of the ADA, which prohibit discrimination against individuals with disabilities in hiring, promotion, and firing.
“The general standard is that businesses must provide reasonable accommodations to qualified individuals with disabilities unless doing so would impose an undue hardship on the business,” Lento said.
ADA tax credits can help you comply
There are several federal tax credits and deductions to help cover the costs of complying with the ADA.
For example, the Disability Access Grant provides a nonrefundable credit of up to $5,000 to small businesses (those with less than $1 million in revenue and no more than 30 full-time employees) for the purpose of providing disability access.
The construction barrier tax deduction, up to $15,000 per year, encourages businesses of any size to remove construction and transportation barriers to the mobility of people with disabilities and the elderly.
There is also the Employment Opportunity Tax Credit, which ranges from $1,200 to $9,600, for businesses that employ individuals from certain demographics, such as those with disabilities.
The government provides ADA guidance and resources
The Department of Justice’s Civil Rights Division offers technical assistance and easy-to-read brochures, as well as a toll-free ADA information hotline. While the hotline does not provide legal advice, it does answer questions about ADA compliance.
Local ADA counseling and training is often available through Pennsylvania Centers for Independent Living, Protection and Advocacy and disability-focused service providers such as Deaf Service Centers, affiliate chapters of the National Federation of the Blind, and entities that serve veterans with disabilities.
Lento says that compliance will not only create a better environment for consumers and employees, but will also benefit the small business owner in the long run by avoiding the negative consequences of non-compliance.
Caserta agrees. “Don’t wait to learn about potential ADA violations in your business; lean into it and learn how to achieve order,” she said. “Remember: People with disabilities are also your customers and, just as importantly, they are members of the community.”
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