Louisiana lawyer stands behind federal legislation to end ADA lawsuit abuse

By Shawnna Stiver | Jun 24, 2016

BATON ROUGE – As the ACCESS (ADA Compliance for Customer Entry to Stores and Services) Act of 2015 works its way through Congress, at least one Louisiana lawyer said the bill meant to put a stop to widespread abuse of the Americans with Disabilities Act (ADA) is good for the state's small-business owners. 

Also known as H.R. 241, the ACCESS Act is sponsored by U.S. Rep. Ken Calvert's (R-CA) and is designed to help small-business owners comply with the ADA by giving them 120 days to correct any accessibility violations before a lawsuit can be filed.

David Whitaker, of Kean Miller LLP, told the Louisiana Record that he thinks Calvert’s proposal is an excellent idea and would go a long way toward curbing ADA lawsuit abuse.

“This would greatly benefit small businesses, who are often the targets of drive-by litigation tactics under the ADA,” Whitaker said. “No one disagrees with the purpose of the ADA, and its goals of eliminating discrimination on the basis of disability and providing the disabled with access to places of public accommodation. However, in our litigious society, claimants in most cases do not provide a business the chance to address access barriers before resorting to litigation and piling up unnecessary attorney fees (on both sides of the dispute – which the business is then expected to pay).”

Because California law made every ADA Act violation subject to penalty, it allows plaintiffs to get $4,000 in liquidated damages plus legal fees. According to the California Chamber of Commerce, California has 40 percent of the nation’s ADA lawsuits, but only 12 percent of the country’s disabled population. These lawsuits place exorbitant legal fees on small businesses and oftentimes business owners are unaware of the specific nature of the allegations brought against them. 

Through the ACCESS Act, any person aggrieved by a violation of the ADA would provide the owner with a written notice of the violation. Within 60 days, the owner would be required to provide the aggrieved person with a description outlining improvements that would be made to address the barrier. The owner would then have 120 days to remove the infraction, or face a potential lawsuit.

Whitaker says that having such a requirement before a suit is filed can be found in many state and federal laws, and makes good sense in this setting. For example, under the employment provisions of the ADA, an employee is required to engage in an interactive dialogue with his or her employer if reasonable accommodations are requested to allow the employee to perform the essential functions of the job. (An ADA employee claimant is also required to file a charge with the Equal Employment Opportunity before a lawsuit is filed).

 Adding an amicable demand requirement in the public facilities context would be similar.

“If the business promptly responds and corrects the situation, then why does a lawsuit have to be filed?” Whitaker asked.

Calvert agrees and wants to see the ADA preserved. 

“The ADA is an incredibly important law for disabled Americans, and Congress needs to act to ensure it continues to benefit the disabled rather than trial lawyers,” Calvert said. “Far too many small businesses in California and around the country are being targeted by lawyers who are more concerned with lining their pockets than actually improving access for the disabled. My bill, the ACCESS Act, makes a common-sense reform that will actually improve access for the disabled while protecting American job creators.”

Calvert recently testified before the U.S. House Judiciary Subcommittee on Constitution and Civil Justice to discuss the measure.

“I think we can all agree that we must ensure that individuals with disabilities are afforded the same access and opportunities as those without disabilities," Calvert testified. “Frivolous lawsuits do not accomplish this goal. Allowing small business owners and cities alike to fix ADA violations within 120 days, rather than waiting for lengthy legal battles to play out, is a more thoughtful, timely and reasonable approach.”

Despite the need for the legislation, Whitaker thinks the chances of the measure being signed into law are slim because of trial attorney lobbying power. He hasn't given up, though, and is encouraging supporters to contact their congressmen and senators to express support for the amendment.

“The ADA is supposed to be about ending discrimination and providing access, not enriching attorneys and fermenting what, in many cases, is drive-by litigation," he said.

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