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Helping Retailers Navigate the Americans with Disabilities Act

By: Dana Graber, Regulatory Counsel, Food Marketing Institute

Parking LotThe food retail industry is continuously looking for ways to increase cost-predictability to help ensure that prices stay low for consumers. This includes reducing the potential risk of costly litigation wherever possible. Recently, FMI hosted a webinar for members to examine the Americans with Disability Act, or “ADA,” based on recent trends in litigation, and ways to help mitigate potential risk.

In particular, the webinar focuses on Title III of the ADA which applies to “places of public accommodations,” and generally helps to ensure that individuals with disabilities have equal enjoyment of and access to the goods, service, privileges, etc. offered by these places. Our Quick Reference Guide is also available to help remind members what is required under the ADA. 

Although there are many legitimate complaints, the ability to get attorneys’ fees and statutory damages (in some states) has to some degree made Title III an easy target for plaintiff’s attorneys looking to make a quick buck.  While the number of cases in federal courts continue to increase rapidly, webinar speaker Amber Roller of Ogletree Deakins, indicated that a significant portion never make it to court. Rather, many plaintiff’s attorneys simply send a demand letter alleging a Title III violation and threatening litigation, with the expectation that many businesses will choose to simply settle outside of court. Because the settlements are often between $3,000 - $15,000 depending on the jurisdiction, potential defendants, including food retailers, regularly find it more cost efficient to simply settle.

Many of the demand letters and litigation focus around “architectural barriers” and websites, as these are often easy targets. For the architectural barriers category, parking lots are the subject of many demand letters since potential plaintiffs can often locate violations using satellite mapping systems or without entering the stores. Restrooms are another common target, as plaintiffs can easily search for wrapped pipes, appropriate hardware, etc. or measure sink, strike side door clearance, etc. out of view.  Similarly, potential plaintiffs can browse websites for possible violations without even being in the same state as a store.

In addition to the webinar, we have worked with outside counsel to prepare some additional resources to help members reduce their risks. 

Watch The Webinar Recording