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Fixing the Disability in the ADA

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Fixing the Disability in the ADA

Bill Crittenden
24 March 2017

The Americans with Disabilities Act, or ADA, is the piece of federal legislation that mandates wheelchair ramps, handicap parking, and other various accommodations for persons with limited mobility to not be limited in their ability to visit businesses.

There's one major problem with it: no one is tasked with inspecting businesses and writing citations. It's a federal law passed on civil rights grounds (civil rights issues taking precedence over the interstate commerce clause restriction on Congress' ability to regulate intrastate business), but as such there aren't any local inspectors checking up on each businesses' compliance with the law. It's left up to privately filed lawsuits to "enforce" the law.

What's ended up happening is that lawyers and cooperating clients look for as many businesses as possible to file lawsuits over minor ADA violations to file lawsuits. These are often called "drive-by" lawsuits because of how many lawyers and clients drive around from business to business looking for targets.

And getting caught out of compliance is egregiously costly for businesses. What should often be just a minor compliance note on an inspection or $100 citation that could be corrected by a handyman suddenly becomes a $10,000 settlement. That's a hell of a lot of money for a small business.

It's also a hell of a lot of money for something as minor as finding that a handicap parking sign doesn't include the amount of fine add-on, but it's still cheaper than the legal fees and potential punitive damages of letting the case go to trial. So businesses settle, and that makes it profitable for the plaintiff lawyers.

That's also a hell of a lot of money for a minimal amount of work, creating the situation where people look for these violations as a source of income.

The worst part is that these violations can be oversights by small business owners who missed some obscure part of a complicated law. They may also be results of damage as yet unnoticed by a business owner. No distinction is made between someone who made such an understandable error and someone who is completely apathetic to the handicapped.

Congressman Ted Poe (R-Texas) is pushing to pass his ADA Education and Reform Act to give businesses "notice and time to fix the alleged infraction" before lawsuits for damages can go forward. It was filed in 2015 with the 114th Congress and re-filed as HR620 under the current 115th Congress.

Not only would a notification step be a much more fair system for honest entrepreneurs to bring their businesses into full compliance with the law but it would curtail one of the most disappointing sources of lawsuit abuse in recent memory. As someone whose family has been dependent upon the ADA at times to make sure some of us aren't kept out of restaurants and stores, it hurts to hear business owners talk about the ADA as little more than a lawsuit generator and the costs of preventing the lawsuits. It should be about people working together to make sure that limited mobility doesn't result in an overly limited life.

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