Sixty Minutes and Forbes have now weighed in on the serial litigation crisis that threatens small businesses sued for often innocent or trivial ADA violations. Congress is gearing up once again to require pre-suit notice, a change demanded by businesses and opposed by disability rights groups. Meanwhile, the pace of ADA filings has only increased, with hyper-aggressive lawyers moving from dozens to hundreds of lawsuits a month, many now concerning web access. Federal judges have responded in some cases with sanctions that amounted in one case to more than $100,000.
How did we get to here? Why has a law to help the disabled turned into a litigation industry? The answer is more complicated than unethical lawyers or profiteering plaintiffs. At the root of the litigation crisis are four things:
- Fundamental defects in how Title III of the ADA treats its accessibility requirements,
- Inappropriate application of court decisions from earlier race and similar discrimination cases,
- DOJ’s failure to provide useful assistance to the business community, and
- The failure of both businesses and disability advocates to admit we have a problem that goes beyond litigation.
No amount of fiddling with notice requirements will solve the litigation “crisis” until these fundamental problems are addressed.
Mischaracterizing Title III of the ADA as an anti-discrimination statute is the root cause of the litigation crisis. Title III does include a general prohibition against discrimination, but that general provision generates almost no litigation. Lawsuits are based on the provisions of Title III that require affirmative action for the disabled in the form of special construction or auxiliary aids and services. Ordinarily “discrimination” means treating equals differently. Under Title III discrimination means not giving special treatment to those with disabilities. There are sound public policy reasons to require special treatment for the disabled, but there is no logic in calling a failure to provide it “discrimination.”
This would just be quibbling about words but for the fact that the courts have decided that earlier decisions on race, ethnic and religious discrimination apply to Title III because it involves “discrimination.” Early civil rights cases gave plaintiffs every advantage because the discrimination they suffered was a clear moral evil accompanied by bad intent. Title III, on the other hand, is a “no fault” statute that sanctions not only those who deliberately ignore its provisions, but also those who are merely ignorant, or who try but fail to meet the law’s exacting and often confusing technical standards. Applying standards developed in race discrimination cases to ADA Title III cases opens the door to abusive litigation by giving disabled plaintiffs an unjustified advantage with respect to standing and proof of harm.
The courts have also made ADA litigation easy by lazily refusing to distinguish between new construction cases and barrier to access cases. Most businesses sued under Title III are sued for failing to remove barriers to access. The courts decided long ago that any violation of the new construction standards under the ADA constitute a barrier to access, thus imposing the absolute compliance requirement appropriate for those who build new public accommodations on businesses that never had the chance to do it right the first time. This spares the courts from doing the work of deciding what constitutes a barrier to access, but does so at the expense of facilitating serial litigation.
A large part of the blame for today’s situation also lies with the Department of Justice, which is charged in the ADA with the obligation to provide assistance for business, but devotes most of its resources to litigation. As I have noted before, the assistance materials provided by DOJ are either written only for experts or buried within its website among a mass of out-of-date and often contradictory guidances and brochures. The Department itself is incompetent to regulate changing technologies, with the result that web access regulations announced in 2010 will not be promulgated before 2018, by which time they will almost certainly already be out of date. That delay has spawned an entire new kind of abusive ADA litigation as serial plaintiffs sue businesses for failing to comply with a regulatory standard that doesn’t even exist. DOJ’s preference for punishment over education is the primary reason so many small businesses today remain ignorant of their ADA obligations.
Finally, both the business community and advocacy groups seem incapable of recognizing their own responsibility for serial litigation. In dozens of newspaper and television stories business representatives complain about serial litigation without acknowledging that local chambers of commerce and similar business groups do little to help their members comply with the ADA. Advocacy groups, for their part, often refuse to criticize even the most abusive kinds of litigation, taking the position that every ADA plaintiff must be on the side of the angels. because every ADA defendant is in league with the devil.
Congress has responded to each wave of publicity about serial lawsuits with the same solution – a pre-suit notice requirement. This does nothing but change the point at which businesses are attacked. In the realm of web accessibility claims at least one law firm always sends a pre-suit notice, but is nonetheless able to extract significant settlement payments because of the threat of litigation. This is also common with some plaintiff’s lawyers handling ordinary accessibilty cases. The economics of dealing with a demand are not much different than those of dealing with a lawsuit – a business that won’t pay up ends up spending a larger sum on its own lawyers. Either ways legal fees divert money away from improving accessibility.
This is the key point. Pre-suit notice will not solve the ADA litigation crisis because it does nothing to improve accessibility or compliance with the ADA. If Congress wants to act, it must combine litigation reform with money to improve accessibility. It should:
- Require real injury for standing to sue,
- Make new construction standards a safe harbor, but not a requirement, for “old” construction,
- Require the Department of Justice to spend money on effective communication with business in preference to merely filing lawsuits, and fund ADA compliance programs that rely on education rather than litigation, and
- Require DOJ to promptly issue regulations on web accessibility and other new technology issues, and make the issuance of those regulations a pre-requisite to lawsuits based on the absence of such technology.
Any of these would be far more effective at both cutting down on serial litigation and improving access than any pre-suit notice requirement. We know that litigation is not an effective means to create ADA compliance because the number of suits continues to go up instead of down. We know that the Department of Justice’s efforts to assist business have failed for the same reason. It is time to abandon a system that has failed and replace it with one that emphasizes education (which requires funding) in preference to litigation.
