There has been a significant increase over the past few years in Americans with Disabilities Act (ADA) accessibility lawsuits, agency enforcement actions and demand letters targeting public accommodations in Texas.

While California, New York and Florida have been the most popular states for claims alleging that individuals with disabilities encountered access barriers, these cases are becoming much more common against physical locations, websites and mobile apps of restaurants, retailers, hotels, health care providers, offices and other entities with a presence in Texas.

These claims often take the form of "drive-by" or "surf-by" lawsuits. In drive-by suits, plaintiffs may briefly visit a location (or even just observe the location from their car window) to identify a potential violation of the ADA's accessibility standards. In surf-by suits, plaintiffs claim that their representatives found violations of Web Content Accessibility Guidelines (WCAG) after performing an audit of the company's website or mobile application. Plaintiffs in these cases are disabled individuals who allege they were denied full and equal access to the property, website or app. There may be little or no notice offered prior to filing to allow the business or property owner an opportunity to remediate the issue before the lawsuit begins and costs accrue.

An increasing number of these claims in Texas are brought by "testers," who are specifically seeking out ADA access violations in order to bring a lawsuit with demands for injunctive relief and an award of fees and costs. Supporters of tester standing argue that a high volume of lawsuits are necessary for people with disabilities to receive reasonable access to the goods and services provided to non-disabled customers, employees and companions.

However, Texas courts have recently expressed concern regarding tester standing for the plaintiffs and law firms who are filing hundreds of lawsuits throughout the state. To bring an accessibility claim, a plaintiff must have suffered a concrete, particularized injury that is not conjectural or hypothetical that a) has been caused by the challenged action of the defendant and b) is "likely" and not speculative, meaning that a decision in the plaintiff's favor will, in fact, redress the alleged harm. Lujan v. Defenders of Wildlife 504 U.S. 555, 560-61 (1992).

District courts have also adopted a four-part test to determine if a plaintiff has standing to bring a claim under the ADA. The test considers: 1) plaintiff's proximity to the defendant's property; 2) plaintiff's past patronage; 3) definitiveness of plaintiff's plan to return; and 4) frequency of plaintiff's nearby travel. See, e.g., Disabled Patrons of America v. City of Trenton, No. 073165, 2008 WL 4416459 (D.N.J. Sept. 24, 2008); and Dempsey v. Piston Beef N Beer, LLC., No. 08-5454, 2009 WL 3584597 (D.N.J. Oct. 26, 2009); see also Kramer v. Midamco, 656 F.Supp.2d 740, 748 (N.D. Ohio 2009).

Some courts view with suspicion plaintiffs who did not patronize a defendant's business before filing the lawsuit, who do not plan to return after the lawsuit, do not specify features on the website or app they attempted to use, or who traveled far out of their usual travel routes to visit a property.

To confirm standing, Texas courts (specifically, the Northern District of Texas) have started to require additional information from plaintiffs and their counsel to confirm who initiated the accessibility inspection and proof that the plaintiff purchased goods or services from the business before proceeding with litigation.

The accessibility lawsuits filed so far this year are impacting every sector of business throughout the state. The most recent accessibility claims in Texas are related to parking, transportation services, signage, restroom fixtures, path of travel, point of sale devices, counter heights, braille gift cards, policies, training, the provision of auxiliary aids and services. Any business with a website or mobile application is also at risk of being sued by customers and employees who claim that they have encountered digital accessibility barriers.

The cost of defending and/or settling accessibility claims is substantial, with fees and costs awarded even in the absence of any actual damages to claimant(s). To mitigate risk and reduce potential exposure, it is important to proactively identify and remediate potential violations. Implementing appropriate policies, procedures, training and updated compliance documentation is critical to prevent claims and most efficiently resolve allegations that are asserted.

John Bosco is a labor, employment and ADA partner at Dallas-based Bailey Brauer PLLC. His practice includes a focus on federal, state and international representations involving all facets of physical and technology related access issues.