Prove Injury in the American Disabilities Access Case

Full Question:

In an American Disabilities Access case, to what extent is the Plaintiff required to prove 'injury' if he was not denied access and was able enjoy the goods and services of the restaurant?Does the fact that the 'pull' on the door exceeded 5 lbs or the access ramp had a 1/2' slope greater than allowed by law imply the Plantiff was injured, yet he was able to enjoy the goods and services?
03/13/2009   |   Category: Personal Injury   |   State: ALL   |   #15613

Answer:

The Americans With Disabilities Act (ADA) states that architectural and communications barriers in existing facilities must be removed if removal is "readily achievable." There is not a specific definition of readily achievable. However, the term takes into account the nature and cost of the accommodation, the size and financial resources of the public accommodation, and the type of entity. If removing the barrier is not readily achievable, then the goods, services or activities must be made available through alternative methods. Examples of the types of modifications that would be readily achievable in most cases include the simple ramping of a few steps, the installation of grab bars where only routine reinforcement of the wall is required, the lowering of telephones, and similar modest adjustments.

Builders of new public accommodations and office buildings designed for first occupancy after January 1993 must comply with detailed design and construction requirements found in Title III of the ADA. Renovations must also comply with these architectural guidelines.

Private individuals may bring lawsuits in which they can obtain court orders to stop discrimination. Physical injury doesn’t need to be claimed. Under the ADA, an employer unlawfully discriminates where it fails to make "reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity . . . ." Individuals may also file complaints with the Attorney General, who is authorized to bring lawsuits in cases of general public importance or where a "pattern or practice" of discrimination is alleged. In these cases, the Attorney General may seek monetary damages and civil penalties. Civil penalties may not exceed $50,000 for a first violation or $100,000 for any subsequent violation.

The following is a relevant section of Title III of the ADA:

Sec.36.501 Private suits.

(a) General. Any person who is being subjected to discrimination on the basis of disability in violation of the Act or this part or who has reasonable grounds for believing that such person is about to be subjected to discrimination in violation of section 303 of the Act or subpart D of this part may institute a civil action for preventive relief, including an application for a permanent or temporary injunction, restraining order, or other order. Upon timely application, the court may, in its discretion, permit the Attorney General to intervene in the civil action if the Attorney General or his or her designee certifies that the case is of general public importance. Upon application by the complainant and in such circumstances as the court may deem just, the court may appoint an attorney for such complainant and may authorize the commencement of the civil action without the payment of fees, costs, or security. Nothing in this section shall require a person with a disability to engage in a futile gesture if the person has actual notice that a person or organization covered by title III of the Act or this part does not intend to comply with its provisions.

(b) Injunctive relief. In the case of violations of Sec.36.304, Sec..36.308, 36.310(b), 36.401, 36.402, 36.403, and 36.405 of this part, injunctive relief shall include an order to alter facilities to make such facilities readily accessible to and usable by individuals with disabilities to the extent required by the Act or this part. Where appropriate, injunctive relief shall also include requiring the provision of an auxiliary aid or service, modification of a policy, or provision of alternative methods, to the extent required by the Act or this part.

Sec.36.502 Investigations and compliance reviews.

(a) The Attorney General shall investigate alleged violations of the Act or this part.

(b) Any individual who believes that he or she or a specific class of persons has been subjected to discrimination prohibited by the Act or this part may request the Department to institute an investigation.

(c) Where the Attorney General has reason to believe that there may be a violation of this part, he or she may initiate a compliance review.

Sec.36.503 Suit by the Attorney General.

Following a compliance review or investigation under Sec.36.502, or at any other time in his or her discretion, the Attorney General may commence a civil action in any appropriate United States district court if the Attorney General has reasonable cause to believe that --

(a) Any person or group of persons is engaged in a pattern or practice of discrimination in violation of the Act or this part; or

(b) Any person or group of persons has been discriminated against in violation of the Act or this part and the discrimination raises an issue of general public importance.