I’ve written before about the dialing for dollars phenomenon in Fair Housing Act claims (click here) and about how cheap standing facilitates litigation aimed more at profit than progress (click here). There is good news on both fronts from the Texas Workforce Commission, which recently dismissed several FHA complaints because the organization that filed them, a private corporation called Fair Housing Advocates, could not demonstrate it had standing. Fair Housing Advocates is operated by Patrick Coleman, one of the two owners of City Vision, a similar organization devoted to making money by means of HUD complaints. Citi Vision appears to have abandoned the dialing for dollars business earlier this year, probably because TWC started dismissing its complaints for lack of standing. More
ADA FHA General
Abusive ADA Litigation – the answer is local, not legal
Tens of millions of dollars are wasted each year on litigation under the Americans with Disabilities Act. The money is wasted because instead of going directly to improvements that make businesses more accessible, the money goes to lawyers. Diverting money from remediation to litigation is the real tragedy of so called “drive-by” lawsuits..
Every couple of years Congress tries to fix this problem with legislation that would require notice before the filing of an ADA lawsuit. There are three such bills pending in the current session. The most sophisticated, the ADA Education and Reform Act of 2015 (H.R. 3765), includes provisions that would help educate businesses about their ADA obligations. This kind of legislative effort has always failed in the past, and there seems little reason to think that the current Congress will be able to do anything this time around.
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When there are a string of local lawsuits state and local government also try get involved, usually with similar efforts to require pre-suit notice. Of course these efforts fail from the outset because the ADA is a federal law and states cannot interfere with its enforcement mechanism.
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Can anything be done? Well, the real problem with the various legislative initiatives is that lawsuits feed on the existence of barriers to access. Plaintiffs’ lawyers I have dealt with tell me that even when they send demand letters more than half are simply ignored by businesses that don’t understand the law or their legal obligations. Given this level of ignorance, and the fact that a plaintiff can easily find 30 or 40 ADA violations just driving around for a weekend, merely requiring a pre-suit demand will do little to reduce the number of lawsuits.
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The ADA Education and Reform Act of 2015 starts to get at this problem with its provisions calling for the development by the DOJ of an education program, but the mandate is not funded, and past efforts by DOJ to educate small businesses have largely failed. Twenty-five years after the passage of the ADA the number of ADA lawsuits continues to climb, which is proof enough that top down education efforts without any funding will never improve ADA compliance or eliminate wasteful litigation.
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What we need instead is work by local chambers of commerce and municipal governments that focuses not on general education but on finding specific common ADA violations so they can be fixed before lawsuits are filed. The best way to do this is to adopt the same tactics used by serial litigants. With minimal training (see our page on Education for Business) police and employees responsible for code enforcement can spot common accessible parking problems. An official notice, even if not accompanied by the threat of a fine, should be enough to get most businesses to look seriously at ADA compliance. Chambers of Commerce can enlist volunteers to do the same thing. Compliance will come from education, but the education will be local, responding to the real needs of local businesses.
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This kind of program does not require any kind of extensive ADA training or survey. The reason lawsuits from serial litigants are sometimes referred to as “drive-by” lawsuits is that the plaintiffs literally just drive around looking for non-compliant handicapped parking. If the parking at a business looks good they probably won’t even stop to see whether the rest of the facility is accessible. A business with parking that meets ADA standards will have eliminated most of the risk of a lawsuit and bought itself time for a proper survey and remediation of the interior of the premises.
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The solution to the waste caused by serial litigation is to eliminate ADA violations, and that can be done most effectively when local governments and local chambers of commerce act directly to find violations and educate business owners about those violations. There is no need to wait for Congress to pass a bill that may be doomed anyway. The answer is local, not legal.
Big time problems with FHA compliance: how do things go so wrong?
The Department of Justice announced in late July a settlement with a substantial multi-family developer in West Virginia that had managed over a decade or so to construct 23 apartment complexes that did not comply with the accessibility requirements of the Fair Housing Act (see the DOJ press release here). In addition to remediation costs, which appear to be substantial, the developer will pay $205,000 in damages and penalties and construct new accessible units. Like most FHA cases, it is a big deal.
One of my fellow bloggers has helpfully suggested that if the DOJ investigates a situation like this you need a lawyer “like me.” What developers “like you” really need is not to be investigated in the first place, and if investigated to not be liable. You can find a link to the consent decree in the DOJ press release, and the problems it lists are the same problems that appear over and over again in FHA lawsuits. Lawyers didn’t cause them, and lawyers really can’t prevent them. Developers, however, can. More
Special treatment in the name of equality – understanding the ADA and FHA reasonable accommodation provisions
One of the hardest things for ordinary people to understand about the ADA and FHA is that these statutes, which supposedly forbid discrimination, make it unlawful to treat everyone equally. To avoid “discrimination” under the disability related provisions of these laws businesses must give special treatment to those with disabilities. More
Disparate Impact – Will it now apply to disability discrimination under the FHA?
On June 25 the Supreme Court held that FHA discrimination claims can be based on disparate impact. Texas Dep’t of Hous. & Cmty. Affairs v. Inclusive Communities Project, Inc., 2015 WL 2473449, at *9 (U.S. June 25, 2015). At first blush this doesn’t seem to have much to do with accessibility claims. When we talk about the policies that discriminate against those with disabilities we usually look at 42 U.S.C. Section 3604(f)(3)(B), which requires reasonable accommodation; that is, exceptions to a policy because the policy has a disproportionate impact on those with disabilities. However, Inclusive Communities Project may have its own disparate impact on claims of disability discrimination. More