ElephantIn the last few weeks there has been a vigorous discussion in various blogs and other forums concerning disability law about the pool lift requirement in the 2010 ADA Standards. These discussions were prompted by the January 31, 2013 deadline for compliance. Hotel and motel owners are concerned with the expense of compliance and in particular what constitutes a “readily achievable” barrier removal for a small business with limited resources. This prompted me to look back at the cases defining what is “readily achievable.”

What I found was of little practical help. The ADA itself outlines the factors to be considered, including cost, but doesn’t say just how to balance them. Various district courts have looked at revenues, gross profits and net profits to determine if the cost of barrier removal was excessive, but always end up saying that the inquiry is “fact intensive.” That, of course, is shorthand for there will be an expensive trial of the case.

What neither the cases nor the ADA and its implementing regulations discuss is the cost of defending a typical ADA lawsuit, even though that cost may dwarf the expense of barrier removal. The fact that barrier removal is so often cheaper than defending a lawsuit is what drives most ADA settlements and a good deal of ADA compliance. Of course many disability advocates would argue that the pressure created by the threat of litigation is a good thing. After all, it tends to make businesses remove barriers when they might not otherwise do it. It seems equally likely though that the dominance of legal fees as a factor in ADA litigation is actually distorting the way in which businesses comply and may be doing as much harm as good.

The first distortion comes from the fact that plaintiffs have an incentive to sue before making a demand in order to preserve a claim to attorney’s fees. The filing of suit and the cost of defending immediately divert resources from compliance to litigation and probably slow compliance as well. A second form of distortion comes from the economic pressure on plaintiffs and their attorneys to minimize investigation expenses in order to make settlement easier later on. This leads to the “cookie cutter” lawsuits over violations that are easy to find, but may not be the most serious barriers to access for the disabled. Businesses may, for the same reason, concentrate their remediation efforts on the most visible violations regardless of how serious they are. ADA compliance is being driven more by what is easy to litigate than by what most frustrates the disabled. Finally, private enforcement by a small number of plaintiffs also seems to encourage battles over standing that once again divert money and attention from the barriers to access themselves.

These are problems only Congress can solve because they are inherent in the private enforcement mechanism. Until Congress addresses them those with disabilities and those who own or operate public accommodations will have to deal with the elephant in the room that the courts have largely ignored when they try to decide what is “readily achievable.”