Title III of the Americans With Disabilities Act: How a Law Intended to Help the Disabilities Community is Misused by Attorneys
Introduction: Title III of the ADA on the Books and in Action
During the late twentieth century, through the Disability Rights Movement, people with disabilities, advocated for their right to be a part of mainstream society and to replace the medical model with the social model (where the surrounding environment is accommodated for people with disabilities). One of the movement’s greatest achievements was the Americans With Disabilities Act (ADA). Signed into law by President George H.W. Bush on July 26 1990, the ADA protects people with disabilities from forms of discrimination and makes it law that public places must accommodate various disabilities, whether the disabilities be physical or mental. Title III of the ADA prohibits discrimination on the basis of disability in public places.
Title III has brought many improvements for access to persons with disabilities. However, since the ADA’s passing, some lawyers have used Title III in cases to obtain payouts by businesses to the lawyers, rather than to really improve access. These lawsuits, sometimes called “Drive by lawsuits” or “Google lawsuits”, are examples of how a law, intended to help the disability community, can hurt this community and others.
In this post, I will discuss Title III as it is on the book, and how it is being applied in the current world.
Section 1: Law on the Books
The ADA prohibits discrimination on the basis of disability in a number of areas: employment, public accommodations, transportation and telecommunications[1]. Title III is the section that prohibits discrimination on the basis of disability in public places. It covers most every public place that is open to the general public, such as shops and stores and other retail businesses. It is intended to make sure that persons with disabilities are able to use these public places.
Title III states that “no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantage or accommodations of any place of public accommodations.”[2] A person who brings a claim under Title III needs to show three elements: 1. the person is disabled according to the definition in the ADA, which defines disability as both physical and neurological conditions, 2. The defendant operates a place of public accommodation, and 3. the person was denied use of the public accommodation due to her or his disability.
For the first element, the ADA defines disability as a “physical or mental impairment that substantially limits one or more of the major life activities.” Originally when ADA was passed, disability was usually thought about as physical (chair users, sight impaired, hearing impaired), but today disabilities more frequently involve persons with neurological conditions, like autism, ADHD, down syndrome. Title III cases, however, mainly continue to involve physical disabilities.
For the second element, the ADA identifies 12 categories of facilities that are covered and they include stores and shops and other retail places. The third element requires removal of barriers, mainly physical barriers, that deny full access, such as installing handicapped parking spaces, installing grab bars in toilet stalls, rearranging tables, and widening stores.
As it is written, the law is implemented in two main ways. One is through complaints brought by the Civil Rights Division of the US Department of Justice against individual businesses, which can result in technical assistance, mediation or sometimes law suits. A second way is through lawsuits brought by private attorneys.[3]
The cases that the Department of Justice attorneys handle come in two ways. First, there is a process by which individuals can file complaints with the Disability Rights Section alleging disability discrimination against a State or local government or public accommodation. The complaint can be filed by anyone, and be done by mail or online. Second, the attorneys can research situations that they believe may be ADA Title III violations and pursue them. In enacting the ADA, Congress encouraged mediation, to avoid the cost and time of litigation. Mediation is an informal process, in which a mediator seeks to help the two parties achieve a resolution. The DOJ provides mediators free of cost to all parties. If mediation is not successful, though, the DOJ attorney can file a lawsuit. Civil penalties can be as much as $55,000 for a first violation, and $110,000 for additional violations.
A second way that the ADA can be enforced is through a complaint filed in court by a private attorney. An attorney needs to have a client, who is covered by the ADA, to file an ADA Title III complaint. The attorney cannot file an action without a client. But with a client, the private attorney can file a complaint, and seek to obtain legal fees as well as requirements that the private business make changes to its physical facilities.
Section 2: Law in Action
That’s the law on the books. Now let me turn to the law in action.
The ADA overall has been a popular one with disability rights advocates and non-profits serving the disability community. The American Civil Liberties Union has described the ADA as “the most comprehensive civil rights law in a generation…its purpose is to extend to people with disabilities the same legal protections against discrimination available to women and racial and religious minorities under the 1964 Civil Rights Act.”[4] A 1996 study by the United Cerebral Palsy Association found that 96% of disabled Americans surveyed said the ADA had made a positive difference in their lives.[5]
Opponents on the other hand, have seen the ADA as putting up more unnecessary government rules and restrictions on individuals and businesses. Greg Perry, author of Disabling America, wrote that as a man with a disability, born with only one leg, “I’m glad that I was born long before 1990, when a much more severe handicap—the ADA—was signed into law…Because costing every normal person money and grief, the ADA increases discrimination against the truly handicapped.”[6]
Title III of the ADA has had positive impacts in making public spaces more accessible.[7] It has allowed persons with physical disabilities especially to gain access to buildings and other public spaces.
The problem has been with the fact that the law allows private attorneys to file complaints and obtain legal fees. Lawyers have filed complaints, not to correct conditions, but to obtain financial settlements, including legal fees.
An analysis by Seyfarth Shaw, a law firm that usually represents public facilities, found that the number of ADA Title III lawsuits filed by private attorneys has grown a lot in the past 4 years. In 2013, 2722 Title III lawsuits were filed in federal court. By 2016, that number had grown to 6601. California and Florida were the main sites of litigation. In California alone 2468 lawsuits were filed in 2016.
Seyfarth Shaw noted that many of these lawsuits had the same plaintiffs. The analysis found five individuals who had more than 175 lawsuits filed in their names: Theresa Brooke (274), Scott Johnson (258), Howard Cohan (251), Lional Dalton (184) and Jon Deutsch (175).
You might ask how this can happen. It is because the law allows any person who qualifies as having a disability covered under ADA to file a lawsuit against a private business, even if, in fact, the person has no real intention of using the facility. In December 2016, the television show, 60 Minutes did a segment on ADA Title III “drive by” lawsuits. The story focused on a small hotel owner who was sued for not having a pool lift by a plaintiff who had never been to his hotel. It also profiled both a California attorney who made millions and filed over 2000 lawsuits under the ADA, and two disabled plaintiffs who claim they were deceived by attorneys.
Small businesses are particularly vulnerable. A business can defend against a Title III suit by arguing that the plaintiff has no intent to use the facility in the future. But the cost of defending a lawsuit can be in the tens of thousands of dollars, so that many small businesses choose to settle.
Section 3: Ideas for reforming the law and its enforcement
As a member of the disability community, I am in support of actions to make all public facilities are more accessible, as Congress intended in passing ADA. However, none of us benefits are useful if the law is misused by private attorneys or persons they recruit for money from the disability community.
In 2016, legislation was proposed in the U.S. Congress called the ADA Education and Reform Act designed to cut down on fake lawsuits. The legislation requires plaintiffs who want to bring lawsuits about architectural barriers to give 60-days’ notice. It also directs the Judicial Conference to develop a program of alternative dispute resolution. Both of these approaches are worth pursuing, as are others that can ensure that the spirit of the law of improving access for adults with disabilities is carried out.
References
- U.S. Department of Justice, Civil Rights Division, “A Guide to Disability Rights Laws”, U.S. Government Washington D.C. , July 2009
- Custodio & Dubey law firm, “Title III ADA Claims”, http://www.cd-lawyers.com , retrieved September 17 2017
- U.S. Department of Justice, “ADA Information and Technical Assistance, http://www.ada.gov , retrieved September 17 2017
- American Civil Liberties Union, “ACLUS Briefing Paper on Disability Rights”, American Civil Liberties Union, February 28 2002.
- ProCon.org, “Is the American With Disabilities Act a Good Law?” http://www.procon.org retrieved September 17 2017
- Ibid
- Silvia Yee, “Achieving Accessibility” Disability Rights Education & Defense Funds, http://www.dredf.org , retrieved November 24 2017.
foundations of law and society 