Curbing Abuse of the Americans with Disabilities Act

Today, the ADA is being abused by a few bad actors who are serving their personal financial interest, not fighting for access for the disabled.

They file lawsuits and immediately settle them for a few thousand dollars, without actually requiring that anything is fixed.

Nobody disputes this abuse is happening.

Nobody says this advances the cause of access.

A small restaurant in downtown San Diego tells a typical story: It was sued by an attorney who had filed 50 ADA suits against restaurants in San Diego County in one year.

The barriers claimed in that suit didn’t exist. The tables were at an ADA compliant height, there was access between tables, the bathroom was accessible.

But the property owner’s attorney told him it could cost him upwards of $50,000 to prove it in court. So, they settled with the plaintiff for $2,500.

The serial litigant got the quick payoff he wanted though there were no violations that had to be fixed.

We hear stories all the time of lawsuits settled without any barriers being fixed.

Some state governments have acted to curb this abuse. And you know who has led the fight against this abuse of disability laws? California Democrats.

In 2016 Governor Jerry Brown signed SB 269, authored by a Democratic State Senator and passed by a majority Democratic legislature.

It gives businesses 120 days to correct violations claimed by a plaintiff.

It’s a bipartisan solution that educates business owners on compliance, redirects payouts spent to settle claims away from lawyers and toward actually improving access. And it protects against cookie cutter lawsuits filed by serial plaintiffs.

Today, we are trying to provide the same correction at the federal level.

Let’s be clear:

Under the Clean Water Act, a complainant is required to notify polluters of a violation, and the violator has sixty days to fix the problem before a private right of action is filed.

In civil rights laws, too. Notice and opportunity to cure is part of federal laws that prohibit employment discrimination. Before you can file a lawsuit for a hostile workplace, for instance, you have to file a claim and give the employer a chance to fix problem.

And, by the way, that process applies to employment discrimination under the ADA as well!

We are asking that business owners be given the same chance to fix problems that we currently give employers.

Under H.R.620, public accommodations still are responsible for ensuring access under threat of litigation. If a property owner fails timely and adequately to respond to a notice, she is subject to the same lawsuit remedies that exist today.

Today, if a public accommodation is out of compliance with the ADA, a plaintiff must file a lawsuit to force compliance.

Under H.R.620, a plaintiff would file notice which starts a timeline to fix whatever problems exist. That doesn’t shift the burden.

On the contrary, it facilitates the removal of barriers to ensure better access for the disabled within a short period of time, discouraging the quick payoff that does nothing for access.

No one solution proposed by Congress is ever perfect and I have worked with my colleagues on both sides of the aisle to find amendments and changes to the law to make the timeline for fixes tighter and to tighten the definitions of compliance.

I’m sure we could improve the bill further, and I will commit to working with the Senate to do so. But in the face of undisputed abuse of one of our nation’s civil rights laws for personal gain, I’m certain that doing nothing is the worst response.

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