ADA Compliance and Defense Blog
As many business owners and commercial landlords know all too well, the number of Americans with Disabilities Act (ADA) lawsuits appears out of control, particularly in California where approximately 40 percent of ADA lawsuits are filed. Why is this?
The answer lies in the legislative design. The ADA was signed into law under the George H.W. Bush administration in 1990. It was designed to avoid further government bureaucracy by allowing aggrieved individuals to enforce the law by filing private lawsuits with the courts, rather than having a governmental agency enforce the law.
While this approach sounded attractive on paper, and perhaps could have been if executed properly, it has instead given rise to a cottage industry of serial ADA plaintiffs who file dozens, hundreds, and sometimes thousands of ADA lawsuits.
To enforce the law, even for minor technical violations, an individual files a lawsuit in state or federal court. Litigation is an expensive process, both for the parties involved and for society. Judges, clerks, lawyers, paralegals and other professionals are all involved in litigation, as well as a very inefficient civil procedure (courts are not nimble).
It is a very inefficient way to ensure that good work is done – a lawsuit over a $5,000 property upgrade could end up costing upwards of $30,000 to implement through litigation. A prevailing ADA plaintiff can recover their own attorneys’ fees and a court order of injunctive relief mandating changes to the property.
California has further incentivized ADA litigation by passing the California Unruh Civil Rights Act. This state law creates statutory damages of $4,000 minimum per instance (per visit) that an plaintiff encountered barriers to access at a property or website. This has led to a vastly disproportionate number of ADA lawsuits being filed in California. With only 12 percent of the U.S. population, California sees roughly 40 percent of the ADA lawsuits filed. Many businesses have been sued multiple times by different plaintiffs who actively search out targets to sue. One notorious ADA plaintiff, Scott Johnson, has sued thousands of businesses, sometimes multiple businesses per day, and recently pled guilty to tax evasion related to funds obtained from ADA litigation.
It’s time for legal reform. When a business is sued for tens of thousands of dollars in statutory damages and legal fees, the costs are ultimately passed on to everyone, in the form of higher prices for goods and services. Many small businesses simply close. If you have eaten at a restaurant or stayed at a hotel in California, you have undoubtedly paid more due to excessive ADA litigation and will continue to do so until reform is implemented. Accessibility is important and should be priority for society. But it should not be implemented at unreasonable and unnecessary cost to everyone.
This is a complex issue that requires complex analysis, but some top ideas for legal reform in this area are:
- Removing the statutory damages incentive in California to prevent serial ADA plaintiffs from attempting to profit off of a civil rights law
- Requiring plaintiffs to provide notice to a business and an opportunity to fix the issue before filing a lawsuit
- Enforcing accessibility requirements through government departments, rather than through private lawsuits
For more on this issue, or if you’ve been sued for ADA or Unruh Civil Rights Act violations, contact the author of this article, Stuart Tubis, at skt@jmbm.com.
Stuart Tubis is a lawyer at Jeffer Mangels Butler & Mitchell LLP and a member of JMBM’s ADA Compliance & Defense Group. Stu counsels businesses on the full spectrum of ADA compliance issues and represents their interests in civil litigation and Department of Justice investigations. He has a background in technology, which helps in resolving the growing area of website accessibility issues. Contact Stuart Tubis at 415.984.9622 or STubis@jmbm.com.