I’m Ingrid Tischer. You may remember me as “headless female torso using a walker” from Anderson Cooper’s “ADA Hit-Piece of Horror” on 60 Minutes. But I’m here today to tell you about a different type of horror: Being a plaintiff in an Americans with Disabilities Act (ADA) lawsuit, in which you’re presumed greedy and where whatever happened to you was no more than an inconvenience.
Four years ago, I began a multi-year metamorphosis into “non-vexatious litigant wanting to use a toilet.” I am the face of ADA lawsuits. But, in the 60 Minutes segment and the continuing slew of hand-wringing pieces about ADA scam-artists, you don’t see that face.
Despite the media’s fixation on “drive-by litigation,” — a completely non-accidental choice of phrase that associates fighting for my civil rights with gang violence – I was using the ADA as it was intended to be used, and should be used. As a civil rights law that, in 1990, made me a full US citizen at the age of 25. But in addition to the external changes in public spaces that have literally opened doors for me, the ADA is responsible for a profound internal shift in my thinking: I have expectations now that I didn’t grow up with: that I can enter a store, eat at a restaurant, cross a city street, open my office door.
Why exactly did I file a lawsuit? What incredibly minor mistake spelled easy cash for me and my rapacious attorney?
Answer: In 2013, over the Memorial Day weekend, my husband and I stayed overnight at a Courtyard By Marriott, in California’s Marin County. Our ADA-accessible room’s toilet was so low I couldn’t use it. It turned out that its required minimum height fell short by about 3 incredibly minor inches. Or, as I came to think of it in my personal pantheon of access failures, “a new low.” That I most definitely did not expect.
There was more. So much more. But no toilet? Let’s just go with that one thing.
We didn’t immediately say, “We’ll sue them!” Because that’s not the way we, like the vast majority of people, actually behave. Instead, we asked each other incredulously, “That was really wrong, right?” We talked to friends. We needed to hear other people say, “Yeah, that was wrong!” And people did.
No matter how the media characterizes it as an easy attack, litigation is a big deal. Even thinking about filing a lawsuit meant that I had to accept that I didn’t imagine it, that I wasn’t overreacting, and that I was prepared to not put a really lousy experience behind me for quite some time.
The courts are intentionally intimidating but they are also supposed to be a leveling place. I cannot think of any other venue or process for me going up against a multinational corporation. The absurdity of H.R. 620, with its baffling bipartisan support, is that it would put an even greater burden on me, a person who has no legal training, and require me to:
- Send a letter to…someone in Marriott’s immense network that detailed the exact ADA provisions that were violated when I could not use their toilet in their ADA-accessible room. Or take a shower because our confirmed reservation for an ADA-accessible room with a roll-in shower turned out to be less a confirmed reservation than an aspiration.
- Allow Marriott a generous amount of time to install a proper toilet, on top of the 25-plus years since they received the ADA’s reasonable requirements.
There’s your horror. Me against a giant corporation and HR 620 is convincing y’all that the system’s rigged against the corporation.
I had to discuss some pretty personal information in meetings, mediation, and depositions, in front of plaintiff attorneys and their investigator, Marriott staff attorneys, Marriott’s hired counsel, a mediator, Marriott’s investigator, and at least two court reporters. I was the only person who had to discuss, in some detail:
- the manner in which I urinate
- the frequency with which I typically urinate
- in what ways my experience of urinating at home was/was not different from my experience of urinating during my stay at the Courtyard By Marriott
- whether I sought any medical treatment related to my experience of urinating during my stay at the Courtyard By Marriott.
That was being an ADA plaintiff. That was my face answering those questions.
When I worked at Equal Rights Advocates (ERA) more than a decade ago, I learned that people who called the Advice & Counseling Line about sexual harassment, for example, could yet be very tentative about whether it was “really” harassment. I think I had a similar hesitancy, at first, even though my head said, “Uh, yeah, you’ve experienced ‘discrimination.'” (Even now, my instinct is to minimize it and write, “Not that what happened to me was anything like being harassed at work!”)
There was another poignant lesson from my doing communications work at ERA for 4 years of the Dukes v. Wal–Mart gender discrimination class action: Plaintiffs would do well to remember they are sticking up for others, as much as for themselves. The named plaintiffs in Dukes endured huge criticism and incredibly disrespectful speculation as to why they were suing for equal pay and advancement opportunities. (That question answers itself.) Being a plaintiff involves exposure. In my case, I was exposed as the lady who’s all fancy and expects to use a toilet while she’s staying in a hotel. Despite having a disability. La-de-da!
How would you feel about a gender discrimination version of H.R. 620? Imagine I’m an hourly associate at Wal-Mart and my manager makes me work off the clock because the male associates “have to get home to their families” and there’s restocking to do. Does Wal–Mart deserve extra time to correct that gender discrimination problem? Is it really fair that a low-wage worker should have to cite the exact provisions for how their rights were violated to the world’s dominant retailer?
If that strikes you as just a tad unfair, remember, too, that H.R. 620’s effects will be borne by low-income people of color because these communities have the highest rates of disability. Although my particular lawsuit – born of the privilege of having access expectations, in the first place – doesn’t fix access problems in corner stores, restaurants, etc., it still contributes to a body of law advancing disability rights. H.R. 620 derails that progress.
So – I’m the “good” kind of plaintiff and I must really resent those legal sharks and their disabled dupes, right? That’s what I’ve had people – including people with disabilities – tell me. No. I don’t. Here’s why:
- The courts and the legal profession have very well-established mechanisms for disciplining those who abuse it or behave unethically. H.R. 620 is unnecessary.
- I see a double-standard when it comes to money. It’s somehow wrong that an attorney or a plaintiff would have a financial stake while business-owners’ financial interests are more noble, more pure.
- It’s long past time for disability access to be fully integrated into business planning and budgeting. Disability advocates have been providing ADA-compliance technical assistance for over 25 years. As this letter details.
- H.R. 620 sends contradictory messages: It’s reasonable to expect an adult living with a disability to be responsible for educating a business owner about ADA access violations and the ADA is so complex we can’t expect a business owner to be in compliance.
- My having muscular dystrophy or any other disability does not make me Access Gandalf. Not every person with a disability is an advocate, much less someone who has technical expertise in ADA-compliance. It’s unrealistic to task people with disabilities with the required labor of researching and providing notifications to business owners about access problems.
- The business community and groups such as Chambers of Commerce need to own cross-disability access as an essential component of success. If business owners will not do this, I’m reluctant to spend my limited energy criticizing how other people with disabilities are using the law.
If business owners want to cure the problem of too many greedy plaintiffs, far fewer access violations is the way to go.