Easy Access: Chicago shops large & small latest targets of growing trend of ADA Title III accessibility lawsuits

By Stephanie N. Grimoldby | Apr 6, 2016

Editor's Note: This is the first installment in a three-part series examining the recent rise in ADA Title III accessibility lawsuits in the Chicago area. Coming installments will take a look at who is bringing the lawsuits and the impact of the lawsuits on businesses and organizations. 

CHICAGO - Fabiola Tyrawa believes she knows all of the customers at her Chicago coffee shop, but she couldn’t put a face on the name of the woman who sued her.

“I’m really close with my customers,” said Tyrawa, owner of Fabcakes at North Wells and East Superior in River North. “I know everybody coming in. I know everybody coming out. I know everybody’s name.”

So, in 2015, when she and her shop were sued by a woman with disabilities who claimed she couldn’t enter the shop without assistance, Tyrawa said she was floored.

The lawsuit, brought under the Title III public accommodation provisions of the Americans with Disabilities Act, alleged Chicago resident Mary Mizerk, who suffers from osteoarthritis and uses a wheelchair, could not independently enter Fabcakes because the existing entrance ramp was too steep and left too little space to open the door and enter the shop.

Mizerk was represented by attorney John L. Steele, of the Accessibility Law Group in Chicago and formerly of Steele Hansmeier PLLC. That firm has been connected with the actions of Prenda Law, a firm that has famously faced legal repercussions over its long-running controversial practice of pursuing quick settlements from people suspected of illegally downloading pornographic films. Steele himself faces disciplinary action from the Illinois Attorney Registration and Disciplinary Commission for his alleged conduct in relation to such legal actions.

Ultimately, Tyrawa and her landlords settled their case, paying $2,500 each.

But it left a bad taste in the mouth of the coffee shop owner, who says a handful of her regular customers are from the Chicago-based disability advocacy group Access Living and have had no issue entering the shop with their wheelchairs.

“It would have cost $10,000 to $20,000 [to fight the lawsuit],” Tyrawa said. “I’m a small business. I don’t have that kind of money.”

It’s no secret to labor and employment litigators that businesses are at increasing risk of being sued for discrimination under ADA Title III.

According to data compiled by the law firm Seyfarth Shaw, ADA Title III lawsuits surged in 2014 when 4,436 suits were filed nationwide, up from 2,722 lawsuits filed in 2013 - an increase of 63 percent.

Last year saw a more modest rise, with 4,789 ADA Title III lawsuits filed in federal court. But the 8 percent increase from the previous year shows that ADA litigation isn’t going anywhere, lawyers said.

Chicago’s federal court saw an even higher percentage increase in 2015 and is on pace for more growth this year.

In 2014, 44 of these lawsuits were filed in the U.S. District Court for the Northern District of Illinois. Last year, that number more than doubled to 94 cases. In fact, Illinois posted one of the biggest jumps in ADA litigation in the country, according to Seyfarth Shaw.

If the first few months of 2016 are any indication, the trend is alive and well. According to federal court records, as of the end of March, 29 ADA lawsuits had been brought against private businesses in Chicago federal court.

Why the sudden increase?

Though the ADA was written in 1990, the Department of Justice in 2010 further defined its terms of compliance with new ADA Accessibility Guidelines. Those guidelines went into effect in 2012.

As with any new regulation, it takes time before business owners become fully aware of their responsibilities, said Kevin Fritz, an associate attorney in employment defense at Seyfarth Shaw’s Chicago office.

“It takes a few years for people to realize what’s required,” he said. “After something goes into effect, it doesn’t necessarily get any action for a few years. And that’s where we are now.

Other big cities have recognized the power of the ADA, and people in Chicago are attempting to make sure businesses there comply with the regulations as they do in New York City and other large urban areas, he said.

Steele said strong advocacy groups - like Access Living - also have made an impact, providing momentum for those with disabilities to gain the same access to Chicago establishments as those without disabilities.

Yet perhaps most prominently, the ADA allows attorneys representing clients demanding access improvements to also request attorneys fees, an award not readily available in most advocacy litigation.

“If not for that provision, we couldn’t file most of these suits,” said Steele, noting most of his clients couldn’t afford the lawsuits on their own.

However, some believe the provision attracts lawyers to engage in “drive-by” litigation, filing numerous suits with the belief that most parties will settle quickly to avoid expensive fees incurred from compliance measures, expert testimony and prolonged attorneys fees.

Steele balked at the assertion that the cases he brings might be labeled “frivolous,” though he did note that only a handful of the ADA suits he’s filed have gone to trial - the rest have been settled fairly quickly.

“It’s not some get-rich-quick scheme plan for lawyers,” he said. “This is by far the least profitable avenue of law that I can imagine doing.”

“[There are] a couple of instances where a business [has] tried to intimidate my client, [saying], ‘This is frivolous,’” Steele said. “I say, ‘Great! You want to fight and pay more of my fees?’

“(T)here’s just no plausible argument, in my opinion. We have photographs. We have evidence that you’re not in compliance.”

Marca Bristo, CEO and president of Access Living, said such lawsuits can raise awareness of discrimination against those with disabilities.

“From our perspective, people with disabilities have the right to have the Americans with Disabilities Act enforced,” she said.

“We fought to have the law on the books, and the establishments who haven’t come into compliance have the responsibility to do so.”

But she conceded they also can risk a backlash against even organized nonprofits fighting to protect civil rights.

“I am aware, and have been for some time, of the practice of ‘drive-by lawsuits,’” she said. “Sometimes, unscrupulous attorneys go out and find people and file lawsuits and settle for money. Those we strongly and vehemently object to.”

Regardless of intent, Bill Pokorny, a partner at the Chicago law firm of Franczek Radelet who represents national hotel and restaurant chains, said the numbers show ADA litigation is here to stay. That’s why the law firm published an article last year advising clients to be proactive in ADA compliance.

But Pokorny said business owners should also keep in mind that, with hundreds of thousands of businesses in the Chicago area, it’s not likely that a small business owner will face ADA litigation.

“Even with a good chunk of these lawsuits being filed, the odds of any individual business facing a lawsuit is fairly low,” Pokorny said.

“We’re talking, at most, tens of lawsuits by any given tester or law firm. So, certainly, for the ones who are unlucky enough to be sued, it’s a headache and an expense.

“For others, what it really does is emphasize the need to pay attention to the ADA and make sure that they’re in compliance. Not only is there the risk of liability, but in most cases, it really is the right thing to do so everyone can enjoy their services and accommodations.”

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Organizations in this Story

Access Living Accessibility Law Group Franczek Radelet P.C. Prenda Law Seyfarth Shaw, LLP

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