November 28, 2006
The Sacramento Bee published a series of articles by Marjie Lundstrom and Sam Stanton highlighting the filing of numerous lawsuits under the Americans with Disabilities Act in California by a small group of individuals. The series looked at what the media has labeled “abusive lawsuits” from the plaintiffs’ and defendants’ points of view and explored the complex issues and negative reactions that have come to be associated with the ADA’s effects on businesses. Unfortunately, the Bee’s November 17, 2006 editorial on the subject wrongly concluded that a “simple solution” to gaining access would be the enactment of a law that gives business owners “60 days or so” to fix violations when they are found out of compliance under the ADA before anyone can sue or collect damages from the business.
Lundstrom and Stanton looked only at lawsuits filed in 2005, and these recent suits included those that attacked “a variety of significant flaws” at business establishments, as well as in government buildings and programs. Their investigation found 910 lawsuits brought in California’s federal courts for ADA violations, [1] 80% of which were brought by 10 private attorneys or firms. These are the basic facts used to illustrate how the ADA is purportedly being abused.
There are other relevant facts: 23,910 civil cases were filed in federal district trial courts in California in 2005. That means that even accepting the Bee’s figure of 910 filed complaints, only 3.8% of California’s civil cases concerned ADA violations. If the suits filed by the 10 most active ADA attorneys and firms are excluded, only 182 California civil cases concerned ADA violations — less than one percent. To put these numbers in further context, the San Francisco Economic Development Office estimates that there are about 109,000 private businesses in San Francisco alone, and 85% of these are small businesses that employ between 1 to 100 people. There are hundreds of thousands of small businesses in the state of California, and there is little doubt that thousands of them are not sufficiently in compliance with the ADA to enable people with disabilities to enter and patronize the business. Given limited government enforcement of private business compliance with the ADA, achieving compliance at the rate of 182 lawsuits a year, or even 910 lawsuits a year, means that our great great-grandchildren with disabilities may one day live in a barrier-free California.
Of course, statistics are open to interpretation, and every documented story of a small business allegedly unfairly targeted for a lawsuit can be matched by a documented story of a person with a disability unjustly denied entrance or service. Busy owners of “mom and pop” businesses have little motivation to investigate their obligations under the ADA, and local inspectors or regulators do not ensure business compliance with the federal law. Surely it is understandable that people with disabilities who are dealing with the complexities of life — making a living, caring for families, maintaining relationships, paying taxes, etc., also do not have the time to become experts in the law. The average person with a disability knows when a business or service is inaccessible to them, but will not necessarily be able to inform the business of the technicalities of what is wrong, the laws that are being violated, and the legal consequences of non-compliance. In light of these realities, a person with a disability has three options when confronting discrimination in the form of inaccessibility: do nothing and try to find another place that will value their business; make a complaint and hope that the business owner acts on it; or hire a lawyer.
The sad fact is that many businesses simply do not recognize people with disabilities as potential customers and, therefore, they see little reason to voluntarily make their establishments accessible. Unfortunately, every time a person with a disability takes her or his business elsewhere because a business in inaccessible, that establishment loses not only the revenue from the customer with a disability, but also the consumer dollars of their family members and friends.
Organized efforts by the disability and small business community to educate businesses and request voluntary compliance have also been met with indifference. For example, eighteen months after such a collaborative effort began in San Francisco, less than three percent of 2,200 businesses which had been offered information and assistance responded. Less than two-tenths of one percent requested grants being offered by the group for accessibility surveys or modification planning. The groups were forced to conclude that litigation achieved greater compliance with state and federal law and greater accessibility than a non-litigious collaborative approach.
Many people with disabilities do not have the capacity to file private lawsuits. Most private attorneys lack adequate knowledge about the ADA, and the U.S. Supreme Court has created strong disincentives in such cases by limiting circumstances under which attorney fees can be recovered. In light of the complexity of the law and the need to make a living off one’s time and effort, few private or even public interest attorneys will take on ADA physical access cases. As a result, the ADA, especially as it applies to small businesses, is overwhelmingly under-enforced in most of the country.
The biggest failing with the Bee’s “simple solution” is that it obscures the real problem: businesses have limited motivation and incentive to comply with the ADA. From the perspective of many businesses and the associations that represent them, it is easier to fight against the law than implement it. The U.S. Justice Department, which is in charge of ADA enforcement, is not required to enforce individual complaints under the section of the ADA that applies to businesses that are open to the public. This weakness, taken together with the fact that there is no link between the operation of a business and the ADA at the local level means that ADA implementation simply does not become a priority. If businesses were required to comply with the ADA in order to obtain or retain abusiness license, for example, they and their associations would be clamoring for information and assistance that would aid them to do so.
According to businesses, however, the basic reason for non-compliance is that the ADA is complex and difficult to implement. If this is the real reason for lack of implementation, then the most obvious, direct and fairest solution is to develop more ways to help small business to figure out what they need to do, help them do it, and penalize them when they fail to take required steps to achieve accessibility – as they would be penalized for infractions of other civil rights laws, or health, safety and other rules. The solutions can be regulatory, policy-oriented, privately organized, or a combination. For example, cities use diverse incentives such as tax breaks and accelerated permit processes to attract businesses. Such incentives could also spur ADA compliance. Businesses could lobby for states to incorporate ADA requirements into local building and health inspections, something mentioned even in the Bee’s editorial. Chambers of Commerce should offer training and information to small businesses on ADA compliance rather than lobby for amendments that would weaken the law. Professional associations of architects and building inspectors need to incorporate ADA education into ongoing professional accreditation requirements. These are all steps that will help ensure that small businesses get the information they need both to do what the law requires and defend themselves if they think they are being targeted unfairly by allegedly unscrupulous attorneys. Increased compliance means less need for litigation, fewer targets for any potentially abusive lawyers, greater accessibility for people with disabilities, and more consumer dollars being spent in accessible businesses. Not a “simple solution” perhaps, but a mutually beneficial solution.
[1] It is unclear whether this figure includes non-physical access causes of action (e.g., a medical clinic’s failure to provide alternative communication for a Deaf person). The total does seem to include government as well as private defendants, even though the controversy and the proposed solution centers only on private defendants.