With the passage of the Americans with Disabilities Act in 1990, rules and regulations were implemented across the United States to help ensure accessibility for visitors and patrons of public buildings, gov’t buildings, and businesses. Over the past 30 years, the effort to increase and ensure access for all has only strengthened and with that so has litigation and compliance enforcement.

ADA Enforcement

Enforcement of ADA regulations and codes is under the purview of the Department of Justice, who state on their website that “through lawsuits and settlement agreements, the Department of Justice has achieved greater access for individuals with disabilities in hundreds of cases.” Though the ultimate resolution of these settlements and lawsuits may vary from case to case, it’s important to note that “under Title III, the DOJ may obtain civil penalties of up to $55,000 for the first violation and $110,000 for any subsequent violation.”

States and Local Governments

Though the DOJ is the chief authority enforcing and ensuring ADA compliance, states and local governments may, with approval from the DOJ, modify their regulations so long as the changes are certified by the DOJ. “Certification bridges the gap between the federal and state enforcement processes. The certification process neither delegates ADA enforcement authority to the states nor eliminates an individual’s right to seek relief through the federal courts. However, effective enforcement of a certified code can mitigate the need for federal enforcement by ensuring that new or altered buildings are accessible. This process gives building owners and design professionals some assurance in advance of construction that the ADA requirements will be satisfied. And, if a lawsuit is filed, compliance with a certified code may be offered as rebuttable evidence of compliance with the ADA.”

Modifications by state and local governments must meet or exceed ADA codes and regulations. In his Sign Expo 2021 session, “Accessibility & the ADA Crash Course”, Dave Miller, Managing Director of Nova Polymers, said that California is one such state that actually expanded their accessibility compliance rules. According to ADA.gov, “When these laws are inconsistent, the burden falls on building owners and design professionals to ensure compliance with both federal and state laws.”

Increased Litigation

Dave added in his presentation that as part of this increased emphasis on compliance 10 states have accessibility inspectors who, unlike general building inspectors, are solely focused on ADA compliance. Whether it’s due to the increased presence of inspectors in these 10 states, or the focus on accessibility nationally, the number of ADA Title III lawsuits has increased exponentially over the past 8 years, according to the data collected by Seyfarth Shaw LLP.

[Total Number of ADA Title III Federal Lawsuits Filed Each Year January 1, 2013 – December 31, 2021: 2013: 2,722; 2014: 4,436 63% increase over 2013; 2015: 4,789 8% increase over 2014; 2016: 6,601 38% increase over 2015; 2017: 7,663 16% increase over 2016; 2018: 10,163 33% increase over 2017; 2019: 11, 053 9% increase over 2018; 2020: 10,982 1% decrease from 2019]

[Total Number of ADA Title III Federal Lawsuits Filed Each Year January 1, 2013 – December 31, 2021: 2013:  2,722; 2014: 4,436 63% increase over 2013; 2015: 4,789 8% increase over 2014; 2016: 6,601 38% increase over 2015; 2017: 7,663 16% increase over 2016; 2018: 10,163 33% increase over 2017; 2019: 11, 053 9% increase over 2018; 2020: 10,982 1% decrease from 2019. Source: https://www.adatitleiii.com/2021/02/the-pandemic-slowed-2020-federal-ada-title-iii-filings-but-2021-may-be-a-record-breaker/]

Though ultimately Seyfarth recorded a modest slowdown of ADA litigation in 2020, due to the pandemic, as they conclude “In January 2021, 1,108 cases were filed – the most ever in a single month. If the filings continue at their current rate, 2021 will be another record-breaking year for ADA Title III filings in federal court.”

Importance of Compliance

Dave emphasized in his presentation that the DOJ’s fees and enforcement should be seen as a hammer to incentivize compliance and not a money maker. Whether you see this act as a punitive measure, or an incentive, with the increased litigation year over year, on access in physical locations and digitally, business owners should do their best to ensure they are up to ADA standards.

Our Ortwein Sign team is versed in ADA guidelines at the state and national level, so that when we build your sign we can assure you that we have built it in compliance and installed your signage per ADA regulations.