ADA Litigation Defense

ADA Litigation Defense Attorneys

Hendershot Cowart P.C. has experience defending businesses of all sizes and industries against ADA and other regulatory complaints – whether the complaint is addressed through the administrative process of the enforcement agency or filed as civil litigation in federal court.

Call (713) 909-7323 today to learn more about your legal options.

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What is the Americans with Disabilities Act (ADA)?

The Americans with Disabilities Act (ADA) of 1990 prohibits employment discrimination against people with disabilities, as well as discrimination in other areas, such as transportation, public accommodations, etc.

The ADA is divided into five titles:

  • Employment (I)
  • Public Services (II)
  • Public Accommodations (III)
  • Telecommunications (IV)
  • Miscellaneous (V)

As a Texas employer, you are primarily covered by Title I and Title III.

ADA regulations are enforced by the U.S Equal Employment Opportunity Commission (EEOC), the Department of Justice (DOJ), and through civil litigation. Complaints can be initiated by individuals, advocacy groups, or the DOJ itself.

Title I of the ADA (Employment)

If you employ 25 or more employees, Title I of the ADA applies to your business. Under ADA Title I, employers are expected to make reasonable accommodations for employees with disabilities. Employers are further prohibited from discriminating against qualified people with disabilities during the application and hiring process and, while employed, in firing or termination procedures. Additional Title I regulations address compensation, job training, advancement, and other terms, conditions, and privileges of employment.

The EEOC enforces Title I of the ADA.

Title III of the ADA (Public Accommodations)

Businesses that are open to the public are required to make “readily achievable” facility modifications to provide equal access to the goods and services they offer, regardless of the size or age of the buildings. ADA Title III also has specific requirements related to policies, procedures, and practices. Examples may include allowing a person with a mobility disability to use an electric scooter even if the business has a no motorized vehicles policy or overruling a “no pets” policy to permit service animals.

Businesses that are covered by Title III of the ADA include:

  • Hotel or motel
  • Restaurants and bars
  • Retail shops
  • Movie theaters
  • Stadiums and concert halls
  • Gyms and fitness centers
  • Hotels, motels, and other lodging
  • Privately operated transportation companies
  • Private schools
  • Daycare facilities
  • Private hospitals and doctor’s offices

Additionally, commercial facilities (such as office buildings and factories) and organizations that offer courses, training, licensing, certification, or professional credentialing to the public are also subject to Title III.

The U.S. Department of Justice enforces ADA Title III regulations. ADA violations can also lead to civil litigation.

Texas has a statute that requires that places of public accommodation ensure access to disabled persons. The Texas Accessibility Standards (TAS) were written to be consistent with the ADA requirements for accessibility. These standards are also enforced by the DOJ.

Responding to ADA Title I Complaints Through the EEOC

Employees or job seekers can file ADA Title I complaints with the EEOC – or the Texas Workforce Commission (TWC) in Texas – and request that the agency take remedial action. The EEOC complaint process is bound by strict deadlines for both the complainant and the employer. Typically, the employer will receive notification of the complaint within ten days of the complaint being filed (this is called the Notice of a Charge of Discrimination). If the EEOC determines that no discrimination occurred, the complaint will be dismissed.

If the EEOC finds merit in the complaint, however, you may be asked to take part in mediation. Or the EEOC may continue its investigation through requests for information and witness interviews. If the EEOC does request additional documents, you have 20 days to respond.

A charge of discrimination does not mean that you have violated ADA laws. However, you should never ignore a Notice from the EEOC or TWC, even if you are confident your business is ADA compliant. Failure to respond or cooperate with the EEOC’s investigation can result in a subpoena.

Before responding to the EEOC, contact an experienced administrative law attorney to help you craft your response and to ensure compliance with the EEOC investigation process. An ADA defense attorney can also help ensure you don’t risk further complications by taking action that may be considered retaliation against the complainant.

If the complainant is dissatisfied with the results of mediation, or the parties fail to agree on a settlement, the EEOC may file a lawsuit in federal court against the employer, especially when discrimination is pervasive or systemic in an organization (the EEOC has limited resources and will generally only file suit when it could have strategic impact); otherwise, EEOC will notify the employee of their right to sue within 90 days.

If an EEOC complaint does result in litigation, our experienced ADA defense attorneys can help protect your rights and pursue a positive resolution in federal court.

What Is the Relationship Between the EEOC and the TWC?

State and federal discrimination laws often overlap (the Texas Commission on Human Rights Act closely mirrors federal laws prohibiting discrimination), so the Equal Employment Opportunity Commission (EEOC) and the Texas Workforce Commission (TWC) may both be involved in an employment discrimination complaint. The EEOC can defer cases to the TWC, but it reserves the right to review a final action by the TWC.

Fortunately, the complaint process is similar at the EEOC and the TWC, and because the state and federal agencies work together, you should only receive one complaint. Additionally, the agencies usually agree on their determinations.

Responding to DOJ Investigations into ADA Title III Complaints

Title III violations are enforced by the DOJ’s Civil Rights Division. Complaints to the Civil Rights Division can be resolved through civil lawsuits. However, before the DOJ can file a lawsuit in federal court, it must go through settlement negotiations. Our attorneys can represent your best interests and protect your rights in these negotiations to help you avoid litigation.

If a settlement cannot be reached through mediation, the DOJ can then file a lawsuit in federal court. The DOJ is empowered to pursue civil penalties of up to $55,000 for the first violation and $110,000 for any subsequent violation. However, the DOJ enforces ADA compliance on a selective basis, primarily focusing on actions that will have a significant impact in a geographic area or industry.

If the DOJ decides not to pursue litigation, individuals or advocacy groups are empowered to file lawsuits to enforce ADA provisions.

Common Title III ADA complaints include:

  • A physical or online location that does not provide disability accommodations
  • Denied an accommodation for a disability, including not being allowed to have a service animal in a commercial or public location
  • Failure to provide effective methods of communication and to provide an interpreter for individuals with hearing impairment
  • Bathrooms with the incorrect dimensions for wheelchair users
  • Denied educational accommodations for a disability or language barrier
  • Failure to make alterations to a facility that are not readily accessible to individuals with disabilities

Website Accessibility & ADA Compliance

As our lives move more and more online, online accessibility has become an issue. This is not isolated to businesses that operate online. Any business with an official website may run into ADA compliance issues. This is because, under Title III, websites are considered places of public accommodation and thereby subject to its requirements. In March 2022, the DOJ issued web accessibility guidance to help businesses ensure that their websites adhere to the ADA.

Cited examples of website accessibility barriers include:

  • Lacking captions on videos
  • Lacking alt text on images
  • Insufficient color contrast
  • Using color alone to provide information
  • Lacking clear instructions
  • Lacking error indicators
  • Lacking keyboard navigation options

Web accessibility requirements apply to all businesses that are open to the public. Failure to comply with these requirements can result in a complaint being filed with the DOJ and/or a civil lawsuit.

ADA Litigation Defense

Responding to ADA Title III litigation frequently centers on whether the accommodations or measures needed to make a facility accessible are truly reasonable. For example, in a case involving architectural barriers, the defendant may demonstrate that removing the obstacles is impossible or that removing them would impose an undue burden to the business.

Another defense strategy is arguing that the complainant does not have standing. This can be achieved by demonstrating that the complainant never visited the establishment or attempted to purchase goods or services.

Defendants can also raise “mootness” as a defense. If the alleged violation is remediated during the lawsuit or the alleged discrimination is unlikely to recur, the courts can deem the controversy moot.

Risk allocation is another common strategy to minimize exposure: Franchise agreements or lease agreements may include provisions that allocate responsibility for ADA compliance and/or indemnify the other party. Franchisees or tenants may be able to hold the franchisor or landlord at least partially responsible for the cost of remediating any ADA violations.

Every case is unique. Speak to one of our ADA defense attorneys today to determine the best legal strategy for your business.

Call Hendershot Cowart P.C. for ADA Litigation Defense Help

Hendershot Cowart P.C. has the skill, experience, and resources to help your business deal with EEOC, TWC, DOJ, and civil claims of ADA non-compliance. In addition to ADA violation defense, we can also help companies of all sizes looking for proactive ADA compliance and risk management services.

Send us a message online to schedule a consultation or call our office at (713) 909-7323.

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