The Department of Justice and various disabilities rights groups are busy celebrating the 25th anniversary of the Americans with Disabilities Act. It is a peculiarly American kind of celebration, because much of the focus is on stepped up enforcement; that is, filing a lot of new lawsuits. The lead sentence from an article in the Austin American-Statesman sums up the party atmosphere:
“A quarter-century after the American Disabilities Act banned the discrimination of disabled Americans, the Texas Civil Rights Project filed 32 lawsuits across Texas.” — including 14 in Austin — that shared a common theme: Access is a civil right.”
Now that’s a party. On the federal level the Department of Justice continues to announce new initiatives to sue, or at least bully, cities and businesses into conforming to its view of the ADA, and private lawsuits continue to be filed at a pace that has not slackened in twenty years.
What seems to be missing from this litigation bacchanal is any question about why, 25 years after its passage, the ADA is still generating such a large volume of lawsuits. The DOJ and others claim that the ADA has been a huge success, but successful civil rights statutes create social change that diminishes the need for enforcement. If we measure the success of the ADA by the volume of litigation, it would seem to have been a failure.
The ADA has not been a failure, and despite the inevitable minority who complain about everything there seems to be little doubt that accessibility has improved as the ADA’s accessibility and accommodation requirements have been implemented. The problem is not that the ADA has failed, but rather that many of those who enforce the ADA care more about creating lawsuits than creating compliance. If you are a hammer, everybody looks like a nail. The Department of Justice and members of the plaintiff’s bar are hammers, and when they look at the world all they see are nails. Private lawsuits in particular are most often driven by trivial violations of technical standards, and the lawsuits are less often about access for the disabled than fees to the lawyers.
I wish I could suggest some simple solution to this problem, but the ADA was built to be implemented through the destructive force of litigation rather than the constructive force of assistance to business. There is no federal agency that will help businesses by inspecting and approving plans for ADA compliance, or that will notify businesses of the need for compliance and give them a chance to understand and fix the problem. State and municipal building inspections will sometimes do this, but there is no safe harbor. A green tag won’t stop an ADA lawsuit. For cities and municipalities the best that can be done is being alert to the most common kinds of ADA issues and trying to win the race to get them fixed before a lawyer shows up wanting money. This is a party you don’t want to attend.