ADA Reform

Signed into law in 1990, the Americans with Disabilities Act (ADA) marked a critical step in the fight to end discrimination faced by disabled individuals in employment, transportation, public accommodation, communications, and other aspects of public life. NAIOP is vehemently opposed to any action or policy which denies rights to people with disabilities and therefore supports the mission and objectives of the ADA.

Unfortunately, a loophole in the ADA’s original language has given rise to so-called “drive-by” lawsuits, which allow unscrupulous plaintiffs to extract cash payments from businesses by threatening frivolous legal action. 

Issue

The term “drive-by” lawsuit comes from the practice of seeking out and alleging minor ADA violations in local businesses. These can range from the maximum thickness of carpeting to the angle at which water comes out of a drinking fountain. Lawyers filing these claims generally rely on a business owner’s reluctance to invest the time and money necessary to fight them, even if the claim is baseless to begin with. Plaintiffs will typically issue a demand letter or otherwise threaten property owners with a lawsuit unless they pay a settlement. A 2016 60 Minutes report even uncovered evidence of individuals using aerial imagery from Google Maps to spot alleged violations, without ever visiting the actual property itself.  

These lawsuits are not in keeping with the spirit or the letter of the ADA. Even more pernicious is the fact that they serve only to enrich the attorneys involved, rather than remedy the situation. Unfortunately, the scheme has proven successful, and the number of Title III ADA lawsuits – those dealing with public accommodations – has skyrocketed over the past 5 years, at the expense of local businesses and property owners. 

Position

Since its inception more than 25 years ago, the ADA has generally been effective in providing access for people with disabilities. However, a targeted fix is needed to stem the flow of “drive-by” lawsuits that prioritize monetary judgements over actual fixes to the problems themselves.

NAIOP believes in commonsense enforcement of the ADA that strengthens the original intent of the law while focusing private property owner resources on fixing violations, rather than paying lawyers’ fees for small technical violations. H.R. 620 takes a measured approach by allowing property owners to fix any alleged violations, while also keeping in place penalties for businesses which continue to violate ADA statutes. The bill would give property owners a reasonable but finite amount of time to remedy any alleged ADA infractions.

Status

H.R. 620, the ADA Education and Reform Act, was introduced at the start of 2017 by a bipartisan group, and approved by the House Judiciary Committee.

Talking
Points

  • The passage of the Americans with Disabilities Act of 1990 was a seminal moment in history, and its mission and core objectives are fully supported by NAIOP.
  • Unfortunately, a small subset of bad actors has exploited a loophole in the law, at the expense of businesses and property owners across the country.
  • The ADA Education and Reform Act of 2017 would ensure that the intent of Title III of the ADA is both preserved and enhanced. The bipartisan legislation is narrowly tailored, and would provide improved public access for disabled Americans while preventing the spread of “drive-by” lawsuits, which are aimed at extracting cash payments rather than fixing ADA violations.
  • The number of ADA violations has skyrocketed recently. The year 2016 saw a massive 37 percent increase in Title III ADA lawsuits over 2015. Furthermore, these cases are being filed by a disproportionately small subset of the legal community. For example, the number of cases in Utah spiked from only one in 2015 to 124 in 2016, due almost entirely to a single attorney who was behind 105 of those lawsuits.
  • Businesses and property owners facing these suits often lack the resources necessary to contest them, or even verify the standing of the complaint in the first place. Thus they are effectively strong-armed into agreeing to monetary settlements, in order to avoid a costly and time-consuming legal battle.
  • The ultimate goal of the ADA is to improve access for the disabled, not to enrich a small group of unscrupulous attorneys. H.R. 620 is a commonsense approach that would realign these priorities by allowing businesses to identify and correct alleged ADA violations. Whereas current law incentivizes quick settlements and payment of legal fees, this legislation would instead place appropriate emphasis on compliance with the ADA and its mission to improve access for disabled individuals.