The recent surge in lawsuits by disabled persons over access to businesses would be tamped down under a proposed revision to the Americans with Disabilities Act, according to both supporters and opponents of the legislation.
But opinions vary on whether HR 620, the ADA Education and Reform Act of 2017, which was adopted by the U.S. House of Representatives on Feb. 14, would continue to offer individuals a valid means to challenge barriers to disabled access in public accommodations. The bill, which awaits consideration in the Senate, would require aggrieved persons to serve property owners with specific notice of disabled access barriers on their premises in order to seek remediation. The legislation would give the business owner six months to address the barriers before the claimant could file an ADA suit.
Under current law, no waiting is required before filing suit. Prevailing parties in such cases are not entitled to damages, but courts can order a business to correct barriers to access and can award legal fees.
The legislation has spurred rhetoric focusing on the role of lawyers under the current law, with defense lawyers and business groups pointing to studies showing a few firms have filed such cases in large quantities. Critics have also pointed to the role of the plaintiff under the current law, who need only be a disabled person who has visited the defendant’s premises and claims to have an intention to visit again.
But advocates for the disabled community say the measure would erode the intent of the ADA: to spur businesses to make spaces accessible to all who want to visit.
Suits under Title III often target fast-food restaurants, shopping centers and motels, and the barriers they cite often include wheelchair ramps with an excessive slope, restrooms that are too small for a wheelchair or have sinks and toilets that are not designed for disabled users.
Lawyers who file suits under ADA’s Title III appear to rely on a small group of handicapped plaintiffs, including some who have filed hundreds of suits, according to a blog post from the firm of Seyfarth Shaw, which represents defendants in ADA cases. Three plaintiffs filed more than 250 suits each in 2016, the post said, and nine other plaintiffs filed at least 100 of the ADA Title III suits in 2016.
High-volume legal action of that magnitude have spurred some media outlets, including the CBS program “60 Minutes,” to give ADA access suits the sobriquet “drive-by litigation.”
Nationwide, 6,601 suits over Title III of the ADA were filed in 2016, a 37 percent increase over 2015, according to the Seyfarth Shaw blog.
“This legislation restores the purpose of the ADA: to provide access and accommodation to disabled Americans, not to fatten the wallets of attorneys,” said U.S. Rep. Ted Poe, R-Texas, prime sponsor of the bill.
If adopted in its present form, HR 620 would undoubtedly cut down on the volume of ADA litigation, said Minh Vu, leader of the ADA Title III practice group at Seyfarth Shaw in Washington.
“If in fact this bill became law, then it certainly would provide relief for smaller businesses,” Vu said. “It most likely would not impact large, complicated facilities with issues that are more challenging to address.”
Although some have argued that the bill would undermine disabled access to public places, Vu disagrees.
“It’s very easy for a small business to have technical violations [under the ADA]. You could have a toilet paper roll that is an inch too far from the toilet. These are not issues that businesses are aware of. What this bill would do is notify businesses of these issues,” Vu said.
She concedes that the bill would reduce the motive for plaintiffs lawyers to bring ADA suits. “If the money incentive is gone, there would be fewer complaints,” she said. Asked if that was a good thing, she replied, “it depends on your perspective. If you’re a business, that’s a good thing.”
“If you are a plaintiff, your concern is going to be, will it be harder to get an attorney interested in your case, because the attorney is not going to be assured of getting fees at the end of the process,” she said.
But the bill’s waiting period for disabled people seeking to enforce their rights has not been imposed on any other protected class seeking redress, said Joseph Young, executive director of Disability Rights New Jersey, a statewide advocacy group.
“There’s no incentive to a business to do things right in the first place. The ADA’s been on the books for 27 years. If you’re operating a business, you had 27 years to fix it,” Young said.
“The disabled have lost the PR war,” Young said. “Nobody likes being sued. But if your business is noncompliant and you are sued, they say it’s the lawyer’s fault,” Young said.
The ADA legislation has earned the opposition of groups ranging from the American Civil Liberties Union and the National Multiple Sclerosis Society to Little People of America and the NAACP.
Several lawyers who represent plaintiffs in ADA Title III cases either did not return a reporter’s calls or declined to comment. One attorney who handled many such cases as local counsel for an out-of-state plaintiffs lawyer, speaking on condition of anonymity, said the litigation was controversial because of the “hypertechnical” nature of the alleged violations that were often the basis of an ADA suit.
The local counsel said fees awarded to the plaintiffs in the cases he handled were typically $10,000 or less. Costs to the defendant for making court-ordered modifications to their property sometimes reached $50,000 or even $100,000, the local counsel said. But that attorney was not aware of any cases where the expense pushed a defendant to go out of business or declare bankruptcy.
Plaintiffs choose defendants who are “very solvent” when they file ADA suits, the local counsel said.
It remains unknown when, or if, the ADA bill will come before the Senate, but defense lawyer Vu, for her part, thinks the standing of plaintiffs in ADA Title III litigation is an area that could stand to be reformed.
“Some businesses that are sued believe that these suits are looking for quick settlements, motivated by plaintiffs attorneys and not by people with disabilities who’ve actually been harmed,” she said. “Another way to address the surge in filings by serial plaintiffs is to tighten up the standing requirement so that only real customers could sue.”