Despite several statutory changes enacted over the past several years, including one by the former Democratic Senate Leader, there continues to be numerous filings of state lawsuits for construction-related violations of the Americans with Disabilities Act (ADA). There has to be significant reforms to limit these lawsuits to only the legitimate ADA violations that actually limit or threaten to limit access. Unfortunately, it is the activities of attorneys, and a very small group of them, which need to be reined in by state law.
While disability rights advocates make the fair point that the federal ADA statute has been in effect for the past quarter century and businesses must comply with the law’s provisions, there is also a legitimate problem of filing lawsuits in California state courts that only result in financial pay-outs to a select group of attorneys without actual ADA access being furthered.
To make matters worse, many times the settlements of these lawsuits do not even require corrective action (i.e., compliance with the ADA) and the lawsuits are often filed based upon technical violations of the ADA, rather than upon a showing of access being denied or limited to a facility otherwise open to the public. As a result, there has to be the right balance struck between competing interests: those of “good actor” businesses trying to comply with the law and the rights of the disabled community trying to ensure proper access to public facilities.
In this state, the problem is exacerbated because California’s unique law regarding the civil rights of disabled individuals provides an opportunity for lawsuits to be filed for construction-related violations that do not necessarily limit or deny access to a business establishment, yet nonetheless constitute a violation of the law. Thereafter, each of these violations (whether technical or substantive, which is my description) equals an automatic statutory penalty as high as $4,000 with the right for the individual to recover attorney’s fees for filing the lawsuit, with specified exceptions.
An interesting statistic regularly cited is that California has 40 percent of the nation’s ADA lawsuits, but only 12 percent of the country’s disabled population. This statistic alone demonstrates that something with the law in this state needs to change. Although there have been legislative efforts in the past few years to try and reduce this type of litigation, those prior legislative efforts have not yet solved the problem of discouraging frivolous litigation while maintaining protections for individuals with disabilities.
These types of “drive-by lawsuits” (because litigants drive by a business without even attempting to gain access) that result only in settlement payments are not the way to achieve the goal of ensuring access to public facilities and compliance with the ADA. There are many well-intentioned property owners who are trying to comply with the often-changing law but nonetheless may have minor, technical violations due to the complexity and specificity of the ADA and its accompanying regulations. Education and greater awareness of disabled access regulations is the better approach to take, rather than allowing a handful of enterprising attorneys to sue thousands of California businesses.
Confounding the problem is that the ADA is found in California’s Unruh Civil Rights Act. While the rights of the disabled community are appropriately deemed civil rights in this state, by placing ADA access in this section of the Civil Code, it creates financial incentives for these lawsuits because of the minimum statutory financial penalties available to plaintiffs.
So, what can be done to achieve the right balance between ensuring disabled access to facilities open to the public, and not enriching a small group of enterprising lawyers? The following should be adopted by the Legislature this session:
- One “Fix-It Ticket” – a business, once served with a notice of potential violation, has 90-120 days to fix the alleged violation, and all other potential ADA violations. If ADA compliance is not achieved, then the lawsuit can proceed. In other words, a business only receives one “get-out-of-jail-free” card. For those violations that are truly technical in nature and do not actually deny a disabled individual access to a business, there should be a right for the business to cure the violation before being sued, such as within 90 to 120 days of notice being given that there is a technical violation of the law.
- Settlement agreements must include a requirement of fixing the ADA violation, rather than just a financial payout.
- Limit the amount of statutory damages that can be obtained for a violation of the ADA, perhaps eliminating the category of these damages all together.
- Like federal law, private litigants should be limited to injunctive relief, with an award of attorney’s fees to be based on the discretion of the court which deems it appropriate.
Chris Micheli is an attorney and registered lobbyist with the Sacramento governmental relations firm of Aprea & Micheli, Inc. He can be reached at cmicheli@apreamicheli.com