July 28, 2023
In October, the U.S. Supreme Court will hear a case involving the Americans with Disabilities Act (ADA): Acheson Hotels, LLC v. Laufer. There is interest in this case because it will resolve the question of whether individuals with disabilities who serve as “testers” have standing to bring lawsuits to enforce Title III the ADA. The allegations in the case are that a hotel (Acheson) failed to adequately describe the accessibility of its facilities on its online reservation system, as required by Title III of the ADA and its implementing regulations,[1] denying a disabled tester (Laufer) information and opportunity available to non-disabled people and causing her to experience dignitary and emotional harms.
Briefs recently filed by Acheson and its amici in the case forward a number of false narratives about ADA litigation, and the people who bring ADA cases. Let’s examine, and debunk, some of these enforcement myths.
Myth No. 1: The ADA is Unfair to, and Harms, Small Businesses
Fact: The drafters of Title III were aware of and accounted for the potential hardships that fixing ADA violations could put on small businesses. Congress recognized the importance of ensuring that small businesses and the ADA were compatible.[2] Accordingly, the obligations the Act imposes are modest, “subject to important exceptions and limitations.”[3] For example, policies, practices, and procedures need not be modified, if doing so would “fundamentally alter” the services or accommodations being offered[4]; auxiliary aids are not required when they would “result in an undue burden”[5]; and barrier-removal is not required when it is not “readily achievable” (i.e., changes that are easily accomplishable and able to be carried out without much difficulty or expense).[6] The Act is balanced, common-sense litigation that sets out the bare minimum requirements to ensure the ADA’s goal of “address[ing] major areas of discrimination faced day-to-day by people with disabilities.”[7] It reflects, and was “the result of extensive scrutiny, debate, and compromise involving Members of Congress, the administration, and the business and disability communities.”[8]
If sued for an ADA violation, whether intentional or inadvertent, businesses are largely in control of how quickly their cases settle, and at what cost. If remediation is undertaken early on, liability for plaintiffs’ attorney’s fees should be modest, limited to the cost of preparing and filing the complaint. In some instances liability for fees can be avoided entirely.[9] When exorbitant defense fees result from Title III cases, it is most frequently the result of unreasonably fighting compliance.
Myth No. 2: ADA Lawsuits are Clogging the Courts
Fact: The business community claims there is a “staggering” and “unrelenting” “tide” of ADA cases “clogging” the federal court system. However, data from the Administrative Office of the U.S. Courts tells a much different story. Over the last 15 years, ADA cases have made up only 2.2% of the federal civil case load.[10] This is a remarkably small number when compared to the “more than 600,000 businesses, 5 million places of public accommodation, and 80,000 units of state and local government”[11] that must comply with the ADA’s requirements.
Forewarnings regarding future waves of litigation are similarly exaggerated. The business community claims that if the courts continue to recognize tester standing it will open the floodgates to ADA cases brought by “unharmed” people. Not true. In order to bring a case under Title III of the ADA a disabled tester must experience an injury-in-fact that is both traceable to the conduct of the business-defendant and redressable (i.e., able to be fixed) by the courts. Testers with disabilities can and do experience injuries-in-fact, including dignitary and emotional harms, when they uncover and experience discrimination through violations of the ADA. These types of injuries have long been recognized by the courts as actionable. Individuals who are not disabled, or not harmed by a business’ discrimination, on the other hand, do not have the ability to bring ADA claims. No one in the disability community claims otherwise.
Myth No. 3: ADA Lawsuits are Meritless and Abusive
Fact: The business community frequently mischaracterizes ADA litigation as “fabricated,” “abusive,” “meritless,” and “bad faith” despite acknowledging that the ADA violations they are accused of are valid and widespread. They confuse meritless litigation with unwelcome litigation. The reality is that businesses are upset that they are being held accountable for disability discrimination. They don’t believe they should be, in part because they do not value disabled customers. As a result of their own ableism, the business community spends more time blaming and villainizing the disability community for enforcing access laws than they do acknowledging and remedying their own failures.
A common fallacy fostered by the business community is that ADA plaintiffs “extract” or “extort” millions of dollars from small businesses, and even force some businesses to close. This is not true. ADA litigants suing private businesses are not entitled to a damage award and can only ask the courts to order physical and policy changes that are “readily achievable.” Changes so significant that they would force a business to close are not “readily achievable” and are not required under the ADA.
Of course, there is a simple and low-cost way for hotels and other businesses to avoid the abuse they allege: comply with the law! The ADA was enacted over 30 years ago.[12]
Myth No. 4: ADA Lawsuits Target Minority Businesses
Fact: The business community claims that ADA plaintiffs “target” minority businesses. They even irresponsibly suggest that ADA plaintiffs may start selecting “targets” based on “race or religion.” These claims are irresponsible, stoke anti-disability sentiment, and are simply not backed by data.
Such claims also ignore the fact that ensuring the accessibility of businesses in minority communities is particularly important to disabled people within those communities, as businesses often serve multiple purposes: community center, market for specialty goods, service center, etc.
Myth No. 5: There is No Financial Help for Businesses Who Want to Comply with their Obligations Under the ADA
Fact: Federal tax incentives are available to help meet the cost of ADA compliance.[13] Voluntary compliance is encouraged.
Myth No. 6: ADA Cases are About Money, Not Compliance
Fact: A common myth pushed by the business community is that ADA lawsuits are only about making money and do not ensure compliance with accessibility requirements. This is demonstrably false. In California, data on ADA filings is collected on an annual basis by the California Commission on Disability Access for an annual report to the California legislature. Data collected over the last 6 reporting years (2016-2021)[14], shows that the majority of ADA cases filed in California (78%) resulted in the plaintiff obtaining barrier removal or policy changes that improved access for disabled people.[15]
Myth No. 7: ADA Cases are Easy to Bring, Inviting Abuse
Fact: The business community portrays disabled plaintiffs and their attorneys as eager to file cases under Title III, often referring to it as a lucrative cottage industry. To the contrary, Title III cases are risky and difficult to bring. Disabled plaintiffs and their counsel are villainized. Fees are not guaranteed, and when they are awarded, they often do not cover the actual cost of litigation. Most people with disabilities are unwilling or unable to undertake the burdensome litigation process, rendering the ADA a chronically under-enforced statute.[16] “For the ADA to yield its promise of equal access for the disabled, it may indeed be necessary and desirable for committed individuals to bring serial litigation advancing the time when public accommodations will be compliant with the ADA.”[17]
Myth No. 8: ADA Reform is Needed to Stop Abusive Litigation
Fact: To the extent that a very small number of ADA lawyers and plaintiffs have used bad faith litigation tactics or engaged in unethical activity, our legal system already provides numerous mechanisms for addressing that problem, just as it does for attorneys and plaintiffs in any other practice area.
For example, federal courts can issue pre-filing orders to curtail vexatious litigation[18]; impose monetary sanctions for litigation misbehavior[19]; or award prevailing defendants attorneys’ fees.[20] Federal courts also have an inherent power to set deadlines in and otherwise manage ADA cases to screen out meritless claims and minimize time and costs.
State Bar Associations can also act against attorneys engaging in bad faith litigation tactics. ADA attorneys have, on occasion, been disbarred, suspended and/or otherwise disciplined for unethical behavior. In extreme cases, the government has stepped in to bring civil or criminal actions against lawyers alleged to be acting illegally.[21]
In light of the robust array of tools available to manage serial litigation and address the very few attorneys and plaintiffs alleged to be misusing the ADA, reforms that would restrict or chill enforcement of the ADA for all disabled people are unnecessary, and would frustrate the ADA’s goal of “equality of opportunity, full participation, independent living, and economic self-sufficiency.”[22]
[1] See 42 U.S.C. (b)(2)(A)(ii) and 28 C.F.R. 36.302 (e)(1)(ii) (the so-called “reservation rule”).
[2] See Hearing on S. 933 Before Committee on Small Business, 101st Legis., 2d Reg.Sess. (1990).
[3] See Spector v. Norwegian Cruise Line Ltd., 545 U.S. 119, 129 (2005).
[4] 42 U.S.C. 12182(b)(2)(A)(ii)-(iii).
[5] id. 12182(b)(2)(A)(iii).
[6] id. 12182(b)(2)(A)(iv).
[7] 42 U.S.C. 12101(b)(4).
[8] 136 Cong. Rec. 17,366 (1990) (statement of Sen. Tom Harkin). See also Statement by President George Bush Upon Signing S. 933, P.L. 101-336, 1990 U.S.C.C.A.N. 601 (July 26, 1990) (The ADA was crafted to “give the business community the flexibility to meet the requirements of the Act without incurring undue costs.”).
[9] See Buckhannon Board and Home Care v. West Virginia Department of Health and Human Services, 532 U.S. 598 (2001) (limiting recovery of fees to situations where a judicial order produces the change sought by a plaintiff).
[10] U.S. Courts Caseload Statistics Data Table C-2 for the period ending December 31 from 2006 through 2022. https://www.uscourts.gov/statistics-reports/caseload-statistics-data-tables?tn=C-2&pn=All&t=All&m%5Bvalue%5D%5Bmonth%5D=&y%5Bvalue%5D%5Byear%5D=
[11] Jeb Barnes & Thomas F. Burke, The Diffusion of Rights: From Law on the Books to Organizational Rights Practices, 40 LAW & SOC’Y REV. 493, 499-500 (2006).
[12] The ADA was signed into law on July 26, 1990, and became effective on January 26, 1992. Pub. L. No. 101336, 310(a).
[13] See Internal Revenue Code section 44 and 190.
[14] During this time period California lawsuits comprised approximately 45% of all ADA filings nationwide. See https://www.adatitleiii.com/2023/02/ada-title-iii-federal-lawsuits-numbers-are-down-but-likely-to-rebound-in-2023/
[15] California Commission on Disability Access (CCDA) Annual Reports to California State Legislature, 2016-2021, available at: https://www.dgs.ca.gov/CCDA/Resources/Page-Content/CCDA-Resources-List-Folder/CCDA-Annual-Reports-to-Legislature-?search=CCDA%20report
[16] See Michael Waterstone, The Untold Story of the Rest of the Americans with Disabilities Act, 58 Vand. L. Rev. 1807, 1854 (2005) (arguing that “[c]ombined with survey data and other social science research showing that people with disabilities are still at the margins of society in areas covered by Titles II and III, these low numbers demonstrate under-enforcement of these Titles … [and] demonstrated noncompliance.”).
[17] Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1062 (9th Cir. 2007).
[18] 28 U.S.C. 1651(a).
[19] Fed. R. Civ. P. 11; 28 U.S.C. 1927.
[20] 42 U.S.C. 12205.
[21] See, e.g., People v. Potter Handy, No. CGC-22-599079 (Cal. Sup. Ct. Apr. 11, 2022); U.S. Attorney’s Office, Southern District of New York, Attorney Pleads Guilty To Filing Fraudulent Lawsuits Under The Americans With Disabilities Act (July 12, 2022) https://www.justice.gov/usao-sdny/pr/attorney-pleads-guilty-filing-fraudulent-lawsuits-under-americans-disabilities-act. See also Order, In re Gillespie, Case No. 21-mc-14 (D. Md. July 5, 2023), ECF No. 14 (referring to court-initiated disciplinary proceedings against a lawyer who previously represented Ms. Laufer in other cases).
[22] 42 U.S.C. 12101(a)(7).