Lawsuit after lawsuit is being filed against San Diego businesses (about 20 per week) for alleged violation of the rights of the disabled. In fact, hundreds of lawsuits are on file in the state and federal courts, many of them with questionable circumstances. Consider the local hotel that was sued when its employee informed the owner of a small lap dog that pets were prohibited. The dog owner had claimed the dog was necessary due to an "emotional disability." Or the local attorney who was sued when the disabled plaintiff showed up at the lawyer's office for a deposition, determined the office was not ADA compliant, and promptly sued the lawyer.

Many of these lawsuits are filed by a select number of attorneys from the San Diego area who specialize in discrimination-based lawsuits. And many businesses are taken by surprise when served with a lawsuit accusing the business owner of discrimination. Although no one intends to discriminate, intent is not a prerequisite to a successful discrimination suit. The ADA requires (1) business owners ensure the disabled have access to any location a non-disabled person is able to go, and (2) in the workplace, an employee who is disabled must be accommodated by the employer in a manner that allows the employee to complete the employee's job.

There is no fixed formula for determining if the business has provided reasonable accommodations, which explains the confusion over the requirements of the ADA and the number of lawsuits being filed. For instance, a gas station needs to consider how a disabled person can purchase fuel at a self-service pump. That may mean providing an employee to assist the handicapped individual with a gas purchase. The station owner should also consider providing a sign at the gas pump alerting the disabled individual how to obtain the help of an employee. There are, however, no specific legal requirements relating to gas stations.

A person who finds himself a defendant must act quickly. A case filed in federal court requires the defendant make an appearance within 20 days from the date of service, and failure to timely respond may result in a default against the defendant. The federal courts are engulfed with ADA cases, and the judges find little sympathy for the business that argues it had no idea it was in any violation of the law.

But the primary reason for moving quickly is the attorney's fee provision, which is really the "tail that wags the dog" in most every case. While bringing a building up to ADA standards may require minimal effort and money, if the lawsuit continues for any length of time, the attorney's fees incurred by plaintiff's counsel may soon eclipse the cost of remediation. The defendant's best course of action is to retain an experienced lawyer in the area of ADA claims, quickly assess the claim and the ability to remedy the problem if one exists, and then determine the best course of action.

Higgs, Fletcher & Mack has been serving the needs of San Diego businesses and residents since 1939, and offers a full range of legal services in both transactional and litigation matters. The Firm is committed to integrity, thoroughness, and care in striving to achieve outstanding results for clients.