Last week marked the 28th anniversary of passage of the ADA and for a brief time the disability law headlines in my Google News feed were celebratory. On ordinary days there are mostly two kinds of headlines. One group of headlines condemns serial or “drive-by” lawsuits as an unfair attack on innocent small businesses, using words like “extortion” and “hold-up.”  The other suggests that any change to the current system of private enforcement of the ADA amounts to destroying it, saying for example that a requirement of pre-suit notice would “strip protections for Americans with disabilities granted under the Americans with Disability Act (ADA) of 1990.”* There doesn’t seem to be much middle ground, but it is worth asking whether either side is right.

Businesses sued under Title III of the ADA almost always have the same reaction. “I didn’t know I was violating the law.” Many businesses in older buildings still believe that they are “grandfathered” and don’t have to comply with the ADA, which is simply false. Others run afoul of the technical requirements in the 2010 Standards for Accessible Design, which differ from the earlier 1991 requirements and in many cases from what looks at first glance like a perfectly accessible parking space or door. In any case the business owner regards him or herself as innocent and while they are usually willing to fix the problem it seems unfair to pay their own lawyer and the lawyer who filed suit thousands of dollars. The pending legislation requiring pre-suit notices speaks to this feeling of unfairness by giving businesses a chance to fix the problem before they get sued.

The position of disability advocates on the other side boils down to two arguments. The first is that ignorance is no excuse with a law that has been in effect for 28 years now. The second is that the current sue first and give notice later is necessary because it more or less insures the lawyer will get paid. If pre-suit notice were required and businesses fixed their problems the lawyer would never get to file suit and would have no leverage to demand payment of fees. This, it is argued, would make attorneys turn to elsewhere to make money, leaving ADA enforcement up to the Department of Justice, which doesn’t have the time or resources to attack individual small businesses. Behind both arguments is often a good deal of anger about the still omnipresent barriers to access faced by those with disabilities.

The problem with the business argument is that it doesn’t address the fundamental problem – a failure of compliance. A few serial filers file frivolous lawsuits, but in the vast majority of cases the ADA violations are real and need to be fixed. In this respect disability advocates have a valid point. Twenty-eight years after the law was passed it should not be possible for me to find three strip shopping centers within a mile of my house that don’t meet ADA parking requirements, including one that redid its parking but did it wrong. The pending house bill, while it contains provisions for educating businesses about the ADA, explicitly refuses to provide new funding for that effort. Since the last 28 years of education have failed it is hard to see how a new educational effort without new money will succeed.

Unfortunately, the exact same problem applies to the arguments of disability advocates in favor of the current serial litigation system of enforcement. We’ve been doing it for 28 years with no sign that it is working. Despite the hoopla, the number of ADA lawsuits is tiny compared to the number of businesses with compliance issues, and most business owners will never be sued.* When it causes headlines serial litigation is educational, but that comes at the cost of creating hostility towards individuals with disabilities and the law itself, neither of which is likely to prompt voluntary changes in compliance. As a means of achieving widespread compliance with Title III, serial litigation has been a failure. The only real beneficiaries have been lawyers.

Why has Title III of the ADA failed, especially with small businesses? The primary reason seems to be ignorance. The ADA was passed 28 years ago, but small businesses come and go with the seasons. Unless a small business is reached when it is formed it may not exist long enough for word about the ADA to sink in, especially in communities that have not yet been hit by a high volume serial filer. Even in those communities the story makes headlines for a while and then disappears so that the next generation of owners will never hear of it. A second equally important reason is confusion. Most local building codes include some accessibility requirements, which can lead businesses to believe that their certificate of occupancy is a certificate of accessibility. Unfortunately local codes are less complete than the ADA in their requirements and in some cases requirements don’t match. For example, cities still using older versions of the International Building Code will impose parking space requirements that don’t meet current ADA standards. A business that has just paid fees for a city inspection is unlikely to understand it must also pay a private ADA expert to examine the property for compliance issues the city missed. A final reason is money. Modifications cost money and the tax credits available for ADA compliance work don’t apply to buildings constructed after 1991 even though many non-compliant buildings have been built since 1991.

Given these problems real ADA reform; that is, reform that seeks to improve ADA compliance and avoid often unfair ADA lawsuits should include these components:

• A system for making sure every new small business is informed of its ADA obligations. This shouldn’t be hard since such businesses already interact with the IRS and data on business formation is readily available from the states. It will require money, but if the goals of the ADA are worth achieving it is worth the expense.
• A grace period during which new small businesses can remediate older premises to make them comply with ADA standards. A new business that knows it has six months, but no more, to become ADA compliant will have a meaningful deadline in which to act.
• A tax credit for both inspection and remediation that applies to all remediation regardless of the age of the building. Congress was far too optimistic when it assumed that all new construction would comply with ADA standards and that only older buildings would require remediation.
• A provision that treats compliance with local accessibility requirements as sufficient when they overlap the requirements of the ADA. This would avoid the trap faced by businesses that are lead to believe they are compliant because they meet local code requirements.
• Provisions for pre-suit notice in private litigation similar to HB 620, but accompanied by funding for DOJ enforcement and education actions. DOJ enforcement has a huge advantage over private enforcement because DOJ does not collect attorneys’ fees. This means that money is not diverted to lawyers that could be better used for remediation.

These sensible reforms would undoubtedly face opposition from businesses that don’t want DOJ enforcement, from tax hawks who hate paying for federal mandates and from the well-heeled plaintiffs’ bar that has a vested interest in making sure most businesses remain open targets for litigation. Nonetheless, it is clearly time to fix an ADA enforcement mechanism that has failed to create the kind of accessibility that was the purpose of the ADA while aggravating businesses and making lawyers rich. Twenty-eight years of failure is enough.

* From On the Anniversary of the ADA, Demand That Lawmakers Defend Our Care.

** Website lawsuits may be an exception. They are so easy to file and the numbers are rising so quickly that any businesses with a significant internet presence has a real risk of being sued.