We Should Not Put Hyperbole in the Way of Accessibility
By Robert Pinnegar, CAE
Horace, a famous poet of Classical Rome, was once quoted in the early years BC saying, “Lawyers are men who hire out their words and anger.”
This quotation is over two millennia old. It takes on a special prescience when we discuss the abuse of one of the most benevolent pieces of legislation to ever come out of the United States Congress; the Americans With Disabilities Act (ADA). Such a discussion focuses on Title III of the ADA, wherein disabled plaintiffs may bring a civil lawsuit against a business which is non-compliant in granting access to disabled people.
The intent of this section and legal action, which cannot seek personal damages, is to bring a non-compliant structure into compliance; a simple and proper goal. But increasingly every year, unscrupulous attorneys are weaponizing the ADA against any small business that they can find; often not even stopping at a location. Instead, they glimpse a doorway is too narrow or a curb too high as they drive by a business, and immediately file a cookie-cutter ADA lawsuit, no questions asked. From this crooked practice comes the term, “drive-by lawsuit”.
Lawyers who engage in suits such as these seek to gain from the leverage granted to them by the attorneys-fees section of Title III of the ADA. This makes their legal services the financial burden of the defendant. State and federal courts have seen many of these cases filed in recent years, but by only a handful of attorneys.. In 2016, alone, there were over 6,600 of these actions filed. A 2017 article by the Denver Post details one woman who filed 64 suits in two months in Colorado. In most cases, a compliance problem can be ameliorated before a ruling can come down from the court. This is the intent of HR 620. Passed by a bi-partisan majority in the House of Representatives, it would provide a reasonable time-period in which a business has an opportunity to bring a structure into compliance before a lawsuit can be filed, saving time, money, and acrimony for everyone involved.
Why, then, would lawyers insist on costly and redundant legal action in these cases? For the money. This story is as old as Horace.
These litigators know the drill. Lawsuits are often filed under boiler-plate language, and have no difference between each other, other than address. They place the thumb of the courts on to businesses, often small ones who could be out of compliance by simple accident or out of confusion with complex federal regulations. These lawsuits are an axe above the head of a business that will end up stuck with exorbitant bills for their own prosecution, or extorted for out-of-court settlements. These tactics drain resources from the business imperiling their ability to deal with the issue. This is yet another barrier between the disabled plaintiff and their stated goal of ensuring access to the business.
A simple period of time in which a business owner can come into compliance is not, as one author put it, “dismantling the ADA.” It does not trample the ability of the courts to go after bona fide bad actors choosing to remain non-compliant. It does not punish a disabled person who is simply seeking the ability to access a building as a citizen and a consumer. It does not even completely shut out the ability of a well-meaning attorney to sue. Rather, it solves both the problems of providing access and preventing frivolous litigation. The National Apartment Association is joined in supporting HR 620 by a coalition of over 20 industry groups seeking an opportunity to cure alleged non-compliance with the ADA before a lawsuit is filed. Let’s stay focused on what HR 620 is about: helping businesses come into compliance to better help the disabled gain access It reinforces the intent of the ADA as originally passed: to assist the disabled community, not drive-by litigators.