Lawyers / Law Professionals

Inclusion Solutions Can Be Your Resource

Need assistance with litigation, lawsuits, or accessibility complaints under the Americans With Disabilities Act?

Inclusion Solutions can:

• Help you resolve existing complaints in a "win-win" manner that provides dignified access for your customers without unreasonable burden for your business/entity.
• Assist with research and other legal resources.
• Provide "preventative" accessibility that will grow your business and ensure that you never face litigation.

All Inclusion Solutions products are built within the spirit of the ADA and the Americans With Disabilities Act Accessibility Guidelines (ADAAG). Our solutions are designed to provide dignified accessibility without imposing burdensome obligations on businesses, government facilities, or election officials.

"We’d like to see people put in the FuelCall™ system because it is the right thing to do, not because it’s a requirement. We believe it is a win-win for everyone."
-Mike Harris, Executive Director, Paralyzed Veterans of America, Michigan Chapter

What is the ADA?

The Americans with Disabilities Act of 1990 (ADA) provides civil rights protections to individuals with disabilities like those provided to individuals on the basis of race, color, sex, national origin, age, and religion. The ADA guarantees equal opportunity for individuals with disabilities in public accommodations, employment, transportation, State and local government services, and telecommunications. The ADA has five sections or "titles" which address different areas of the law. Titles I, II and III are the most common ones.

Title I requires employers with 15 or more employees to provide qualified individuals with disabilities an equal opportunity to benefit from the full range of employment-related opportunities available to others. Businesses must provide reasonable accommodations to protect the rights of individuals with disabilities in all aspects of employment. Possible changes may include restructuring jobs, altering the layout of workstations, or modifying equipment. Under Title I, accommodations are customized to the specific employee’s needs.

Title II of the ADA addresses state and local governments. Title II of the ADA protects qualified individuals with disabilities from discrimination on the basis of disability in accessing services, programs, or activities. Title II also affects governments with respect to providing accessibility to elections and the voting process.

Title III of the ADA covers "Public accommodations" including all businesses affecting commerce. Public accommodations must comply with basic nondiscrimination requirements that prohibit exclusion, segregation, and unequal treatment. With respect to existing facilities of public accommodations, physical barriers must be removed when it is "readily achievable" to do so (i.e., when it can be accomplished easily and without much expense). Tax write-offs are available to minimize the costs associated with the removal of barriers.

A common misunderstanding under Title III is for the standards for existing facilities. There is no "grandfather clause" exempting older facilities. Instead, older facilities only need to make changes that are "readily achievable" — or made without great expense or effort.

Inclusion Solutions Background and Experience with Legal Issues and Litigation

Inclusion Solutions is experienced in helping businesses and government entities with addressing their accessibility issues.

Our experience in assisting customers with litigation includes:

Address or Prevent "Drive-By Lawsuits"

• A common problem is where attorneys will file complaints against multiple businesses in a district for ADA violations. In cases where some businesses in a neighborhood had our BigBell alert system (plus portable ramps) and others did not, our clients were not sued while nearby business were.
• Our solutions can both help address existing complaints and be a preventative measure to help them from happening in the first place.

Nationwide Solution for Business/Restaurant Litigation

• BigBell™ Alert Systems and portable ramps are often the solution to address accessibility issues for businesses sued in large class-action cases.
• A restaurant in Florida faced an ADA complaint. The restaurant fixed all of the violations and brought a motion for summary judgment based upon all violations having been remedied. Two violations included inaccessible door hardware on the front door and impermissibly heavy pounds of force required to open the door. The restaurant installed a BigBell™. The court found in favor of the restaurant and that the BigBell™ was a legitimate “readily achievable” solution for these two front door violations.
• A dry cleaner in Chicago was sued for inaccessibility under the Chicago Human Rights Ordinance. The plaintiff agreed to and the administrative court accepted the installation of a BigBell™ to solve the door hardware issue.
• Our solutions can be part of an integrated, cost-effective solution for accessibility that can help resolve or prevent litigation
  

Resolve Other Accessibility Issues

• BigBell alert systems and/or portable ramps have been the solutions in many accessibility complaints to help resolve the disputes.
• We can help design an “alternative service” plan if your facility cannot be made accessible.

Solve Service Station Litigation

• The operator of multiple service stations on a state tollway was sued for ADA violations regarding refueling policies and other areas. Inclusion Solutions provided our FuelCall system and the service station operator prevailed on summary judgment in the claim.

Resolve Deaf Drive-Through Complaints

• A franchisee of a major quick-service restaurant faced federal litigation concerning the inability of customers who are deaf and/or hard of hearing to use their system. Installation of OrderAssist resolved the complaint.
• Other national restaurants are also using our solutions as part of their addressing of accessibility barriers.

Part of the Solution for Election Officials and Government Officials

• A major city election board was sued because many of their polling places had alternative entrances for voters with disabilities but those doors were locked. Our BallotCall alert system helped resolve the complaint.
• A large county was sued by the Department of Justice for inaccessible polling places. We provided a dignified DOJ-approved curbside voting solution that resulted in that part of the complaint being dismissed.
  

Available Legal Resources and Services

Legal Resources

• Experience with ADA on staff
• Products built to ADA and ADAAG (and state law) Standards
• Relationships with advocates and protection and advocacy services nationwide
• Memos, briefs, and other legal resources on addressing accessibility

Services

• Provide “readily achievable solutions” to comply with the ADA
• Creation of dignified “alternative service” plans to meet requirements
• System-wide solutions to address litigation whether you are a single-unit location or a national business with thousands of storefronts
• Preventative solutions
• Expert testimony
• Research and other information on accessibility

We can assist either Plaintiffs or Defendants with solving accessibility barriers in a dignified and cost-effective manner.

Accessible Doors and Legal Support for BigBell™ Alert System

Door hardware at facilities is covered by the Americans With Disabilities Act Accessibility Guidelines or ADAAG. The ADAAG standard for doors is that they must have a design that does not require any kind of twisting or turning to open the door and should not be higher than 48 inches from the finished floor.*

A simple way of determining whether your door hardware meets the proper standards is to try the "Fist Test" — which the United States Department of Justice advances. Try opening the door or your polling place using only one hand, held in a fist. If you can do it, so can a person with limited manual dexterity.

Every element of the Inclusion Solutions BigBell™ (the basis for the BallotCall™, FuelCall™, and OrderAssist™ products) was specifically designed to meet federal regulations. The BigBell™ pushbutton was built to be easy to activate "without tight grasping or twisting" and was designed specifically to pass the "fist test" and has successfully been used by many people with severe disabilities.

A standard intercom system or doorbell may not be acceptable as a door hardware solution. This is because most of these systems have small buttons that do not pass federal access guidelines nor the "fist test". Thus the oversized pushbutton of BigBell™ is necessary to ensure legality.

Department of Justice regulations consistently support the concept behind BigBell™—an accessible alert system to replace poor door hardware. Consider:

• Cases settled with and mediated by the DOJ have found doorbells to be a viable solution for accessibility.
  See a sample DOJ settlement agreement OR mediation document >>
• DOJ advisory letters have also found doorbells plus signage to be "permissible" as readily achievable alternatives for heavy doors and door hardware.
  See a sample DOJ advisory letter >>
• The Department of Justice has consistently found that buzzers are a "readily achievable" access alternative under both Titles II and III of the ADA.
  

* ADAAG 4.13.9 “Door Hardware. Handles, pulls, latches, locks, and other operating devices on accessible doors shall have a shape that is easy to grasp with one hand and does not require tight grasping, tight pinching, or twisting of the wrist to operate. Lever-operated mechanisms, push-type mechanisms, and U-shaped handles are acceptable designs.”

Response to Litigation: What to Do If you Are Sued (under Title III)

It can be unsettling when your business is sued for ADA violations. But Inclusion Solutions can help. Below are some ideas on addressing the situation.

One of the first things to determine is whether the complaint is a legitimate one brought by a plaintiff truly unable to access your services or whether it was brought by a "professional plaintiff" or "Drive by" lawyer. Courts look very differently on legitimately aggrieved individuals as opposed to plaintiffs who often bring claims without real injury in an effort to secure quick settlements. If the complaint was by an individual, often a polite call, apology, and/or offer to come up with an alternative can resolve the situation.

Your business should also determine where they truly stand regarding accessibility. Violations may range from the minimal to the significant. Other ways to educate yourself is to review documents such as the U.S. Department of Justice , "ADA Guide for Small Businesses" and other information which addresses many "FAQs" on topics of interest such as proper signage, aisle–width, and correct slope of entrance ramps. (See our resources section for links.) Be sure to document your access improvement plans for achieving ADA compliance. If you are sued or investigated, such plans stand as critical evidence in your defense.

And sometimes "readily achievable" changes can be simple — or you may be able to create dignified "alternative service" such as offering to meet customers with disabilities in a nearby accessible location, providing free delivery, or other creative solutions. In many cases, the cost of compliance may be far less than litigation. Inclusion Solutions is experienced in coming up with dignified accessibility plans that may be cost-effective and "readily achievable" for your business.

In some cases, if your business has made changes, it may ultimately be part of a defense to the complaint and may even justify dismissal of the claim. You may or may not need to hire an experienced attorney and/or ADA consultant to address the issue. But please call Inclusion Solutions first – we may be able to help resolve the case without resorting to expensive measures.

This information is for reference only and should not be construed as legal advice (see Legal Disclaimer). Please call Inclusion Solutions at 866.232.5487 or click here to email for more information

Additional Resources

• United States Department of Justice ADA Documents
  • ADA Home Page
  • Questions and Answers for Businesses
  • ADA Guide for Small Businesses
  • ADA Business Brief: Assistance at Service Stations
    
• Great Lakes ADA Center
  
• Protection and Advocacy Services
  
• Inclusion Solutions Links for Legal Resources for Elections
  
  • Legal Approval of BallotCall
  • Election Reform, Polling Place Accessibility, and the Voting Rights of the Disabled, Hollister Bundy, Election Law Journal. June 2003, 2(2): 217-240.
  • HAVA, STATE INITIATIVES AND POLLING PLACE ACCESSIBILITY IN 2004 AND BEYOND Hollister Bundy, ITDB Journal, 2004