NHEH Publications

House Approves Amendment to Protect Businesses from Drive-By ADA Lawsuits

By Lindsey Berg-James

Attorney, Noland, Hamerly, Etienne & Hoss

The Americans with Disability Act of 1990 (ADA) prohibits discrimination against people with disabilities by private businesses that provide public accommodations or operate a commercial facility.  While the ADA was enacted to ensure access to public accommodations for the disabled, it is often abused to shake down small businesses that would rather pay the plaintiffs than engage in what can be expensive litigation.  California offers financial incentives for plaintiffs suing under the ADA, including a $4,000 penalty per infraction and the payment of the plaintiffs’ attorneys’ fees by the defendant.  The opportunity for monetary gain has created serial plaintiffs (and their attorneys) who seek out and sue dozens, if not hundreds, of businesses for often minor violations in exchange for a quick settlement.  A 60 Minutes episode from December 2016 showed California lawyers filing ADA lawsuits after simply driving past businesses or performing a Google Earth search.

In an effort to curb these abuses, the House of Representatives passed the ADA Education and Reform Act (HR 620) on February 15, 2018 requiring a would-be plaintiff to send the business a pre-lawsuit notice that specifies (1) the alleged barriers in the facility, with a citation of the section of the ADA that has been violated; (2) “the circumstances under which the individual was actually denied access to a public accommodation;” and (3) whether a “request for assistance in removing the barrier was made.”  A lawsuit can only be filed after sending this notice if the business does not respond within 60 days with a description of the improvements that it will make to remove the barrier.  If the business responds as required, but fails to remove the barrier or make “substantial progress” toward removing the barrier within 120 days, the lawsuit can be filed. 

Supporters of the bill say that given the ADA’s technical requirements that businesses sometimes violate unintentionally (e.g., the toilet paper roll is a half an inch too far away from the toilet), providing businesses with notice and an opportunity to fix the problem will help achieve the ADA’s purpose — making businesses accessible to people with disabilities.  On the other hand, opponents say the amendment will cause businesses to take no action to comply with the law until they receive a notice, and puts the burden of compliance on people with disabilities, rather than business owners.   

Whether HR 620 (or a similar bill) is likely to pass in the Senate is yet to be seen, but business owners are hopeful its introduction will help deter serial ADA plaintiffs.

This article is intended to address topics of general interest and should not be construed as legal advice.

© 2018 Noland, Hamerly, Etienne & Hoss