Won't the cost of compliance drive some places out of business?

By law, when a facility fails to meet ADA standards, the landlord who owns it and the tenant who leases it share responsibility to make "readily achievable" modifications for people with disabilities. Major remodeling, such as knocking down a restroom wall or widening a hallway, is considered too costly. (However, new construction can be required to make whatever modifications are necessary to comply with the ADA, readily achievable or not.) Which violations will be remedied is subject to negotiation between plaintiff and defendant(s). Many violations are easily corrected: for example, by moving a toilet, adding grab bars, changing door hardware, and lessening door pressure.

Unfortunately, many leases are written to place the burden of legal fees and the cost of compliance entirely on the tenant. When a landlord’s unwillingness to share these expenses drives a tenant out of business, the blame is frequently misplaced onto the disabled person who filed the lawsuit.

The federal government offers an annual tax deduction of up to $15,000 plus an annual tax credit for small businesses to make their facilities accessible. In California, the state offers loans for up to $50,000. By taking advantage of these benefits, businesses could proactively remedy barriers to accessibility, rather than wait for a lawsuit to spur them to action.

Some defense attorneys--because they are unfamiliar with the ADA, or want to demonstrate their legal prowess, or have some other motivation--encourage clients to dispute expert findings or resist fixing violations. Cases drag on and legal expenses rise due to inaction, procrastination, and postponements. As a result, their clients may unnecessarily incur legal fees (in one instance, hundreds of thousands of dollars over a three-year period) that far exceed the cost of complying with the ADA standards they must meet anyway.

Did the New York Times feature about the ADA represent you fairly?

No. Naively, I had envisioned that the feature article in the July 25, 2021, Sunday magazine would be titled something like: "30 Years After Passing Into Law, the Americans with Disabilities Act Is Still Being Enforced Primarily by Those It Was Meant to Protect. What Went Wrong?"  Instead, it opens with a sensationalist and inflammatory headline that suggests “profiteering” as a motive for filing lawsuits.

The article itself provides much needed education about ADA issues with somewhat greater balance than the usual coverage, which is heavily slanted in favor of defendants. Nevertheless, in overt and subtle ways, it also helps to promote a negative bias against people with disabilities who seek to enforce the law.

As just one example, the author dramatically creates the alarming impression that I demanded $75,000 from a restaurant owner, then waits until much later in the article to correct herself. The final settlement amount remains confidential, but similar cases typically have settled for between $10,000 and $12,000. Most of that goes toward legal expenses; civil rights damages constitute a fraction of the total amount.

Numerous other distortions, omissions, and inaccuracies needlessly cast an unfavorable light on me personally and my efforts to uphold the ADA. Before publication, during the fact-checking process, my attempts to correct these misrepresentations were largely dismissed. After publication, I clarified a few of them in a letter to the editor that met all the requirements for submission. The Times declined to print it.

(Click on The Regulatory Review and Accessibility.com for related articles.)

Aren't some of these lawsuits over trivial violations?

Defendants, their attorneys, and the media frequently perpetrate this myth by focusing on complaints they see as minor inconveniences in an effort to discredit the significance of the many barriers ADA lawsuits successfully identify and correct. The truth is, trivial violations don't provide a successful basis for a lawsuit. Besides, a "trivial" inconvenience for one disabled person can be a major obstacle for another. A lawsuit can identify all the violations so that the accessibility needs of people with other disabilities will be addressed at the same time.

The press quoted one business owner complaining he was sued because the restroom mirror was placed an inch too high. In fact, this was only one of several relatively minor violations named in the lawsuit. Major violations included obstacles that rendered the restroom completely inaccessible to anyone in a wheelchair.

Don't disabled people exploit the ADA as a scam to make money?

Most laws can be abused by unscrupulous people. However, abuses of the ADA are rare compared to the number of cases that have helped bring about a more accessible world. On average, cases resolve in 8 to 12 months, although sometimes they can drag on for years. In California, damages for the plaintiff typically range from $0 to $4,000. The hourly rate for the plaintiff's attorney is approved by the court; defense attorneys set their own rate. Damages and all legal costs are paid by the defendant if the case is successful. Plaintiffs prefer timely resolution; defense attorneys who throw obstacles in the way of settlement needlessly create added financial burden for their clients.

Does a successful legal action remedy the situation?

Yes, most of the time. But occasionally even a successful lawsuit is not sufficient to bring about needed changes. In one instance, a café addressed the ADA violations named in a lawsuit. Later, the café was remodeled in such a way that it became even less accessible. This necessitated filing a second lawsuit to bring the place into compliance. In several other instances, businesses have agreed to fix the ADA violations, then made only a few--and sometimes none--of the required alterations.