Congress passed the Americans with Disabilities Act (ADA) in 1990 to prohibit discrimination against people with disabilities in multiple areas such as public accommodations, employment, transportation, and state and local government. Title III regulates businesses and non-profits that are public accommodations under § 36.104, such as dry-cleaners, restaurants, grocery stores, movie theaters, hotels, and many more. These public accommodations must comply with ADA standards and provide easy access for individuals with disabilities, remove any barriers in existing buildings, and construct new buildings to comply with these standards.
Title III allows individuals to sue businesses whose facilities are not designed to comply with the accessibility standards set out in the ADA, and pursuant to § 36.505, the prevailing party may recover attorney’s fees, litigation expenses and costs. Unsurprisingly, this has paved a path for attorneys to specialize in Title III litigation and burden businesses with multiple actions against them, known as drive-by lawsuits. The Cooperator notes that the “true goal of the opportunists who file these lawsuits is not necessarily to eliminate accessibility barriers, but rather to pocket hefty payments for their fees.”[1] These “barriers” are also usually minor, and instead of the business paying for litigation costs and attorney’s fees, they quite often settle. Although settling can be significantly less than litigation costs, it typically costs businesses around $10,000 to $25,000.
On February 15, 2018, the House of Representatives passed an amendment to the ADA Education and Reform Act of 2017 to limit frivolous lawsuits. The amendment still needs to pass the Senate before it is implemented, however, the provisions deter drive-by suits and provide a layer of protection to businesses while keeping litigation costs low. Section 3 is as follows:
The bill prohibits civil actions based on the failure to remove an architectural barrier to access into an existing public accommodation unless: (1) the aggrieved person has provided to the owners or operators a written notice specific enough to identify the barrier, and (2) the owners or operators fail to provide the person with a written description outlining improvements that will be made to improve the barrier or they fail to remove the barrier or make substantial progress after providing such a description. The aggrieved person’s notice must specify the circumstances under which public accommodation access was denied.[2]
This amendment is significant as it requires individuals to provide notice to the business that they must improve the barrier before they file a lawsuit against them. Business would have 60 days to respond to the notice with their plan to fix the problem and another 60 days to complete the work. Section 5 requires the Judicial Conference of the United States to develop an “alternative dispute resolution [mechanism] to resolve such claims. The model program should include an expedited method for determining relevant facts related to such barriers and steps to resolve accessibility issues before litigation.”[3] This will deter frivolous claims as it will give businesses another option before entering into litigation or a settlement agreement. The expedited process would also cut litigation costs for both parties.
The amendment to the ADA can significantly deter drive-by lawsuits particularly in New York City where a vast majority of buildings were constructed before the implementation of the ADA in 1990. Until it is passed in the Senate, buildings should ensure they comply with ADA standards and confirm their insurance will cover ADA claims.[4]
[1] Ratner, R. (May 2018) “No More ‘Drive-By’ ADA Suits?” The Cooperator. Available at: https://cooperator.com/article/no-more-drive-by-ada-suits/full#cut. Accessed on May 11, 2018.
[2] H.R.620 – 115th Congress (2017-2018). Available at: https://www.congress.gov/bill/115th-congress/house-bill/620. Accessed on May 11, 2018.
[3] Ib.
[4] Op. Cit. n1.