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ADA in need of tinkering

ADA needs some tinkering.

The Americans with Disabilities Act was designed to allow more access to the hundreds of thousands of Americans with handicaps.  It protected employees with disabilities and improved disabled access to accommodations, a particular problem. Curbs, doorways and other obstacles often limited access to people in wheelchair, for example.  People with disabilities often could not operate cars or have easy access to public transportation.  The barriers were often so severe that people were practicably restricted to their homes.  Any routine outing required extensive logistical planning. 

In 1990, Congress enacted the ADA to increase disabled persons' access to public accommodations.  Generally, the Act has been a success.  Relatively inexpensive measurers were undertaken to increase access in all newly constructed restaurants, hotels and other public accommodations.  Retrofitting also served to remove barriers.

That is not to say the Act has been completely successful.  Barriers remain.  Unfortunately, the Act has also spawned some cottage industries relating to handicapped access.  The ADA accessability guidelines are often offered as a the premier example of regulatory overkill, exceeded in arcane technical detail only by IRS regulations.  Unwitting hotel, restaurant and store owners can easily run afoul of the regulations.  An overlooked regulation can result in an unwanted and expensive lawsuit. 

But why go through the time and effort to file a lawsuit because the faucet is two inches too high?  The ADA has an attorneys fees clause. 

Even if actual damages are non-existent, a successful plaintiff can recover attorneys fees under the ADA.  Once attorneys fees are available, a suit complaining that the craps table are too high in the casino can be profitable.  There is no intent to ever try these cases, a very good living can be made off the settlements, especially against small business owners who can be financially ruined by litigation expenses. 

The story last linked notes that federal judges are finally scrutinizing these cases and either denying relief altogether, denying attorneys fees to the putative plaintiff or even deeming the plaintiff a vexatious litigant, barring further frivolous lawsuits altogether.  As an attorney representing defendants subjected to this abusive litigation, I say the judicial scrutiny is long overdue and should be expanded to other private attorney general statutes as well.

Posted by Joseph R. McFaul on Tuesday, January 06, 2009 at 19:30 Comments (0)

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