The ADA Education and Reform Act passes a crucial first test.
by PETER CLERKIN
In early February, the fight to strengthen the landmark civil rights law Americans with Disabilities Act (ADA) passed a crucial first test when a bipartisan majority in the House of Representatives passed H.R. 620, the ADA Education and Reform Act with a vote of 225-192. The bill seeks to provide a “notice and cure” period where alleged ADA violations are brought to the attention of the business owner, and they have up to 120 days to address or make substantial progress towards addressing issues of physical access.
Improving and expanding physical access is the original intent and spirit of the ADA, but the recourse for addressing violations under Title III of the law created the unintentional consequence of unleashing a torrent of frivolous lawsuits that put profit ahead of people. Lawyers are recruiting plaintiffs to file what came to be known as “ADA drive-by lawsuits,” in which plaintiffs often use deliberately vague language to allege businesses to be out of compliance with provisions of the ADA. Demand letters suggest a settlement that is relatively less than the cost of hiring a lawyer and litigating the matter, and the owner often settles to avoid drawing their business and employees into a protracted legal battle.
The practice is so rampant and profitable that individual lawyers file hundreds of these lawsuits, often with the same plaintiffs alleging the same ADA violations. Only the defendant’s name changes in the court documents, but the sheer volume of these cases filed sometimes proves to be too much for some attorneys to even get this part correct. Often, hoteliers discover that the plaintiff never actually was a guest at or even visited their property. AAHOA members also report receiving lawsuits that had their property name on one page and another business’ name on subsequent pages. The brazen ways that some attorneys abuse the ADA to line their pockets is intolerable and increasingly unaffordable for hoteliers and other small business owners.
AAHOA’s advocacy efforts helped advance the bill through the House. Members affected by these lawsuits shared their compelling stories through congressional testimony, letter writing, phone calls, and, the most effective means of advocacy, face-to-face meetings with their legislators. While these efforts encouraged legislators to cross the partisan divide and build a coalition to pass this legislation in the House, the bill awaits a forward-thinking sponsor in the Senate. Rep. Ted Poe (R-TX), the bill’s sponsor, called for Senate action saying, “I urge the Senate to quickly take up this legislation and put an end to unscrupulous attorney’s abuse of the ADA.”
While awaiting federal action, Minnesota, Arizona, New Mexico, Texas and Florida passed legislation to curb drive-by lawsuits. Although this provides some relief for hoteliers and small business owners in these states, unscrupulous attorneys are merely setting up shop in a neighboring state and beginning their predatory practices anew. Others lacking that pioneer spirit simply move up to the next level and are filing their claims in federal court. A fix at the federal level, while not eliminating this type of lawsuit abuse entirely, refocuses efforts on addressing accessibility issues before resorting to litigation.
Peter Clerkin is AAHOA’s director of Government Affairs Communications.