Businesses are required to comply with the obligations under Title III of the Americans With Disabilities Act ("ADA")—there cannot be discrimination on the basis of disability in the full and equal enjoyment of the goods, services, facilities, or accommodations of any place of public accommodation. When a plaintiff prevails in an ADA lawsuit, the court awards attorney fees. In recent years, the number of lawsuits filed to complain about alleged violations under Title III has skyrocketed, especially in Florida, Texas, Arizona, and California.
At least some of these lawsuits have been disparagingly referred to as “drive-by” lawsuits—situations in which federal cases have been filed over minor violations in the construction of a facility, often by a “tester” who has not even patronized the business that is sued. (For example, lawsuits have been filed over the height of a paper towel dispenser, the width of a parking space, and the height of a urinal.) These cases seldom go to trial—the construction “fix” to comply with the ADA is well below the costs to defend a federal court lawsuit, so the business reaches a prompt settlement that includes paying off the plaintiff’s attorneys. Because these are not class actions, no court ever considers whether a settlement is fair and reasonable in a fairness hearing.
To be sure, some of the claims are legitimate and some of the violations of Title III are not minor at all. And when Congress enacted the ADA, it included a right for successful plaintiffs to recover attorney fees—creating a “private attorney general” enforcement mechanism to help ensure compliance with the law. But the “drive-by” cases have been held out as justification for efforts to restrict lawsuits under Title III through proposed amendments to require “notice and an opportunity to cure” before any case can be filed.
Congress nearly passed a law in the 114th Congress (HR 3765) that would have fined any person who transmitted a demand letter that failed to “specify in detail the circumstances under which an individual was actually denied access to a public accommodation, including the address of property, the specific sections of the ADA alleged to have been violated, whether a request for assistance in removing an architectural barrier to access was made, and whether the barrier to access was a permanent or temporary barrier.”
More importantly, that bill would have imposed preconditions to any lawsuit under Title III: namely, a specific notice of the alleged violation, followed by an opportunity to cure the violation within 120 days (or at least make “substantial progress” toward that goal).
The 115th Congress will likely enact a similar bill into law. The language of the newest bill, HR 620, has yet to be released, but it is expected to be close to, if not the same as, that of HR 3765. We’ll be tracking those efforts, following up with another blog post if it becomes the law. In the meantime, if a business is sued under the ADA, it would be a good idea to consult with a design professional or a lawyer on our real estate or construction group to see whether the accusations have merit.