Noncompliance with the Americans with Disabilities Act just became costlier. Pursuant to an inflation-adjustment formula, on March 28, 2014 the Department of Justice (“DOJ”) issued a final rule raising the civil monetary penalties assessed or enforced by the Civil Rights Division, including those assessed under Title III of the ADA (“Title III”).
Title III prohibits public accommodations from discriminating against disabled individuals with respect to access to goods, services, programs and facilities, and (with limited exceptions) requires public accommodations to make reasonable accommodations so that disabled individuals may equally access these goods and opportunities. Accommodations may include modification of physical space in order to remove physical barriers, the provision of auxiliary aids for communication (such as sign language interpreters, closed captioning, written materials in Braille), and a wide variety of other, context-specific adjustments to the way business is conducted or services are offered.
With the upward adjustment, the maximum civil penalty for a first violation of Title III rises from $55,000 to $75,000, and the maximum civil penalty for a second violation rises from $110,000 to $150,000. The new maximums apply to violations that occur on or after April 28, 2014. The last time these penalties were adjusted for inflation was in 1999.
These penalties can be consequential for small businesses or those with thin profit margins, and can accrue to significant levels for businesses of all sizes if the DOJ finds evidence of repeated violations of Title III. The DOJ’s current ADA enforcement environment is an aggressive one, consistent with the aggressive positions recently taken by many other federal agencies which protect workers’ and civil rights, such as the National Labor Relations Board, the Equal Employment Opportunity Commission, and the Office of Federal Contract Compliance and Programs. Health care and life science businesses, in particular, are targets of the DOJ’s Barrier-Free Health Care Initiative, which has led to an increase in the number of Title III enforcement actions undertaken by U.S. Attorney’s offices across the country in the past several years.
The increased penalties are one more reminder that the costs associated with ADA compliance should not be postponed until enforcement – in the form of a civil lawsuit or the DOJ – is knocking at your (hopefully accessible) door.
Please join me and my colleagues Frank C. Morris, Jr. and Brian Steinbach on April 29 and April 30 for a two-part webinar concerning ADA compliance. Registration is complimentary.