Have you ever wondered just why certain kinds of ADA lawsuits recur so often, while others are rare? Or how a business owner can be proactive in avoiding ADA and FHA Litigation? On Thursday, March 13, at 1:00 Eastern Time I’ll be presenting a webinar for the TASA Group on “Understanding, Avoiding and Defending Accessibility Lawsuits.” You can register at http://www.tasanet.com/forAttorneys.aspx.
Accessibility Litigation Trends
The drums of war are pounding. Last January a disability advocate from Florida, Marc Dubin, published a short article titled “What Doctors (and Their Office Managers) Need to Know About Patients With Hearing Disabilities and Interpreter Services.” He pointed out the obvious; that is, that doctors cannot discriminate against the deaf. On March 19 of last year the Annals of Internal Medicine published and academic article on problems with care of the disabled. On May 23 the New York Times followed it with article titled “Disability and Discrimination at the Doctor’s Office” by Dr. Pauline Chen in which she described both the difficulties doctors may have treating disabled patients and the consequences to the disabled when they don’t get the right treatment. In July the Department of Justice sued a doctor in Florida based on alleged discrimination against the deaf. This was merely a continuation of its “Barrier-Free Health Care Initiative” that earlier in the year lead to a number of settlements with medical facilities. Of course when every DOJ “initiative” is a plan to investigate and sue businesses of one kind or another. Finally, just a few weeks ago the Department of Justice published its Guidance on Effective Communication.
There is plenty to worry about in these developments. Private attorneys advertise as advocates for the deaf, which means they believe there is money in litigation. High profile settlements by hospitals in cases brought by the deaf are an example to those who want to litigate, and a few deaf serial litigants have appeared. Most significant, however, is the DOJ Guidance, which seems to impose absolute requirements that many doctors and dentists will not be able to satisfy without crippling expense. It starts with this statement:
In a doctor’s office, an interpreter generally will be needed for taking the medical history of a patient who uses sign language or for discussing a serious diagnosis and its treatment options.
That’s right, no matter how small your practice and no matter how few and far between deaf patients may be, an interpreter is “generally” required.
The DOJ Guidance does note that there is an “undue expense” exception and that it may be permissable to require advance notice that an interpreter is needed, but advocacy groups, many of which shape the perception of what the law requires, tend to be more absolute, saying things like:
Hospitals, clinics, and mental health centers are covered by these laws and must also provide a qualified interpreter if needed and you are a patient, patient’s spouse or parent.
Marc Dubin, the advocate mentioned above, puts it the same way in a list of things he believes businesses should know: “In most cases, people who are deaf need a sign language interpreter to communicate with you, and you need to hire one.”
It’s also a fact that an “undue burden” defense has little or no meaning in the real world of litigation. Most businesses, including doctors, cannot afford the tens of thousands of dollars in legal fees they would have to spend winning a case based on an undue burden defense, especially since the DOJ notes that the availability of the defense might change every year depending of the financial condition of the defendant. The plaintiff’s bar is well aware that the very existence of a lawsuit will likely force a settlement, regardless of the merits.
The take-away is simple. Doctors and other medical professionals need a plan for handling patients with hearing impairments and a policy that implements that plan. The plan will have to include providing an interpreter, although it may require advance notice. That means, of course, finding a service that can provide interpreters on short notice for short periods of time. Medical professionals also need to make sure they are equipped to handle TRS phone calls from those with hearing impairments (see my January 13, 2010 blog on the obligation of professionals to handle TRS calls) . Both of these will require time and effort, but when you’ve got a target painted on your back making sure you comply with the law is a good idea.
The attorney’s fee provision in the ADA, 42 U.S.C. §12205, is perfectly even handed. It simply allows the court to award attorneys fees in its discretion. Nonetheless, courts consistently hold that ADA lawsuits should be treated like civil rights cases under Title VII, in which a prevailing plaintiff always recovers fees, but a prevailing defendant can only recover fees if the plaintiff’s claims were groundless or without foundation. See, Mitchell v. City of Moore, Okla., 218 F.3d 1190, 1203 (10th Cir. 2000), applying the rule in Christiansburg Garment Co. v. Equal Employment Opportunity, 434 U.S. 412, 98 S.Ct. 694 (1978). This asymetry gives plaintiffs a powerful advantage in any ADA lawsuit and is one factor that drives most cases to early settlement because plaintiffs have nothing to lose and everything to gain while defendants have everything to lose and nothing to gain. Although the train has long since left the station on this interpretation of 42 U.S.C. §12205, it is time for the courts to carefully analyze just how to apply the existing standards in the context of modern Title III ADA litigation.
Courts should start with their analysis of a defense claim for attorney’s fees with the fact that the violations most likely to give rise to an ADA are objectively verifiable. A reasonable investigation of a claimed barrier to access must include measuring slopes, widths, heights and other critical dimensions, because those measurements define the existence of most violations. Almost any violation that a plaintiff pleads and that the Court later finds does not exist represents a violation of Rule 11, because the existence of the violation is almost never subject to reasonable dispute. Peters v. Winco Foods, Inc., 320 F. Supp. 2d 1035, 1040 (E.D. Cal. 2004) aff’d, 151 F. App’x 549 (9th Cir. 2005) is a good example of a Court getting it right. The plaintiff’s sweeping allegations included only one that was sustainable, and since the others were clearly without foundation defense attorney’s fees were appropriate.
It is also clear that because the only relief available under the ADA is injunctive, the remediation of any violation makes further pursuit of claims based on that violation groundless. The Court’s observations in Kallen v. J.R. Eight, Inc., 775 F. Supp. 2d 1374, 1381 (S.D. Fla. 2011) should serve as a model for other courts faced with lawsuits that continue after remediation:
Because of this failure to engage in the due diligence required by Rule 11 of the Federal Rules of Civil Procedure, and Plaintiff’s further insistence on proceeding with his claims after they were clearly rendered moot, the Court finds this lawsuit to be frivolous, unreasonable and groundless, subjecting Plaintiff to payment of Defendant’s attorneys’ fees and costs.
Defendants often complain that they do not receive pre-suit notice or an opportunity to remediate ADA violations. If more courts were willing to recognize that remediation not only moots these claims, but also makes further pursuit of the claims frivolous, plaintiffs would learn to dismiss moot lawsuits instead of pursuing them for no purpose other than to obtain an award of fees.
The asymetry of attorneys fee awards in ADA and other civil rights cases is usually justified by the “chilling effect” if plaintiffs risked an economic loss. There are two problems with this justification in modern ADA litigation. First, there is little risk that a plaintiff who complies with Rule 11 will ever file a groundless lawsuit because most violations are objectively determinable. The only plaintiffs at risk are those who file boilerplate allegations without having investigated their claims. Second, most ADA litigation is filed as a profit-making enterprise by a relatively small number of plaintiffs and law firms, and many cases target small businesses with limited economic resources precisely because the asymetry of attorneys fee awards forces these economically weak defendants to settle. Defense attorney’s fees are unlikely to seriously impact an industry as large and well financed as the ADA litigation industry.
There is no doubt that the ADA is a civil rights statute, but the wholesale adoption of legal principles that were developed fighting intentional acts of racism into a no-fault statute whose violators are often guilty of nothing more than ignorance doesn’t make much sense. However, Courts should have little difficulty awarding prevailing defendants their attorney’s fees by applying the well established standards for such fees to plaintiffs who file or pursue objectively groundless claims.
For the last several years I have tracked the rate of ADA litigation filing in the United States. California consistently leads the nation in ADA lawsuits. It also has the nation’s most punative accessibility statute, the Unruh Act. Florida is consistently second in the number of filings despite the fact that it has no provisions that punish ADA defendants. Between them these two states account for half or more of all ADA filings nationwide.
If it weren’t for Florida, one might conclude that a punative accessibility statute will drive an increase in lawsuits, and this criticism of the California statute lead to reform efforts that were intended to reduce the payoff for plaintiffs of unnecessary accessibility lawsuits. There is no evidence, however, that these reforms have had a real impact on the number of lawsuits filed. Is there any conclusion to be drawn from the similar rates of lawsuits in states with very different regulatory environments?
Yes. It is clear that a punative accessibility statute has no effect at all on rates of compliance with acceessibility laws. The intention of the punative damage provisions in the Unruh Act was to give businesses an additional economic incentive to bring their facilities into compliance with the federal and state accessibility standards, but with two decades of regulation in place there has been no reduction in the number of lawsuits filed. The punative damage incentive has been a complete failure from a regulatory standpoint, enriching lawyers and professional plaintiffs without effecting any change at all in the way businesses deal with accessibility.
It is equally clear that using private litigation as a means of compelling accessibility has been a complete failure nationally. Plaintiffs in Florida don’t seem to have any trouble finding non-accessible businesses to sue, and the number of ADA lawsuits has only increased over the last 20 years. Private litigation in general has proven to be a complete failure as a regulatory tool.
The reason for this is not hard to discern. Businesses do not believe that the revenue lost because of accessibility problems justifies the cost of remediation, and the risk of litigation is still too low to provide a sufficient incentive for compliance with the law. In part this is just a failure of perception. The customer that never comes in the door is invisible, so a business may not understand it is suffering any loss of revenue at all. The willingness and ability of many individuals with disabilities to adjust their behavior contributes to this perception. Most of those with disabilities are good at finding ways to work around accessibility problems and reluctant to complain because complaints are just another way in which their lives become defined by their disability.
The failure of the Unruh Act to change the behavior of business should be a lesson to those who promote private litigation and punative damages as a regulatory tool in accessibility law. While a private lawsuit may change how one defendant behaves, litigation has been a complete failure as a tool for changing how businesses behave in general. Those disability advocates who are truly concerned with accessibility rather than litigation profits should be looking new regulatory solutions, and businesses that complain about the cost of litigation should be looking for ways to become compliant in ways that make economic sense.
 For example, in November of 2013 there were 256 accessibility lawsuits filed nationwide with 96 in California and 76 in Florida. 170 of the 256 lawsuits were filed by serial plaintiffs; that is, plaintiffs who file multiple lawsuits.
By richardhunt in Accessibility Litigation Trends, ADA FHA General, ADA FHA Litigation General, ADA indemnity contribution, ADA Insurance, FHA indemnity contribution, FHA Insurance Tags: ada litigation, FHA Litigation, Indemnity and Contribution, private lawsuits
The rule is simple, but crazy. A contractual indemnity provision that shifts liability for FHA or ADA violations is unenforceable. Equal Rights Center v. Niles Bolton Ass., 602 F.3d 597 (4th Cir. 2010). Owners, operators, contractors and others who may have independent liability for ADA or FHA violations cannot contract among themselves to determine who will ultimately be responsible. More