Wednesday, January 25, 2006

Student Note on Serial ADA Litigation

New on Westlaw: Carri Becker, Note, Private Enforcement of the Americans with Disabilities Act: Abusive or Commendable?, 17 Hastings Women's L.J. 93 (2006). The author tends to think that serial litigation is generally abusive, and recommends the following policy prescription:

Reforms to the ADA should focus on providing protection to businesses that have demonstrated good faith efforts to come into compliance. Certification is a means of providing protection to small businesses that is supported by the California Chamber of Commerce. Recently enacted legislation establishes a scheme by which individuals can become certified ADA access specialists. These specialists can assist businesses in identifying compliance issues and foster greater accessibility statewide. However, these specialists will not prevent vulnerability to lawsuits.

According to the Chamber of Commerce, unless safe harbor provisions are adopted, businesses will continually be vulnerable to lawsuits even when following the advice of certification specialists and making good faith efforts to comply with all of the accessibility guidelines of the ADA. An effective safe harbor provision should provide immunity from lawsuits to businesses that solicit and follow a certified ADA specialist's recommendations, unless that business is given specific notice of violation and fails to make necessary repairs in a reasonable time.

I believe that the California Chamber of Commerce has the right idea. A safe harbor provision should be provided to business owners who make good faith efforts to come into full ADA accessibility requirements. This solution is more appropriate than a mandatory notification period, which has been introduced in both the House and the Senate, because it does not reward bad faith efforts of businesses to avoid making accommodations. Under the proposals of the House and Senate, businesses can avoid following ADA guidelines without repercussions up to the point when notice of a violation is received. Adopting a safe harbor according to the provisions outlined above would avoid this major criticism, which is often made by ADA activists and members of the disabled community.

I would modify the Chamber of Commerce's suggestion in one way, however. Instead of only allowing a safe harbor to those business owners who employ the services of certification specialists, I would extend the safe harbor to businesses that are able to make an affirmative showing of good faith efforts to comply with the ADA. This would avoid the imposition of the costs of hiring a certification specialist for those businesses that are comfortable following the ADA Accessibility Guidelines without professional assistance. This provision could be effectuated by allowing businesses an opportunity to prove that violations were unintentional and not made in bad faith. If the court is satisfied that the business acted in good faith, the business should be granted a safe harbor period in which to remedy the situation without being subject to plaintiff's attorney's fees or damages. This provision would only apply to minor infractions, however. For example, if the grab bar in a bathroom was installed one inch too high despite architectural drawings depicting proper placement, the business that hired the contractors should not be liable for the inadvertent mistake, provided such mistakes are extremely limited in number. The downside of this modification, however, is that making such an affirmative case in court would undoubtedly require the expenditure of attorney's fees. Still, the expenditure of fees may be warranted when the cost of settling is substantially higher.
For what it's worth, I'm currently working on a paper that takes a less hostile view of serial ADA litigation. My argument, which elaborates some things I have written on this site, is that though there have been abuses by serial litigants, there is nothing abusive about serial ADA litigation per se.


Blogger Mary K. Day-Petrano said...

I think I am well-qualified to comment on this. I passed the California Bar Examination in July 1997 (graduated law schol in May 1990, but it took a four-bar examination fight to get the Committee of Bar Examiners to comply with Title II of the ADA). The bar examination I passed provided me extensive dictation (to a 90 wpm typist) and extra time accommodations. I completed a Rehabilitation Act of 1973 Individualized Written REhabilitation Plan that concluded I needed, and provided me, a voice-recognition Speech-To-Text assistive device. In the end, Supreme Court of California Clerk Frederich Olrich speaking for Chief Justice Ronald M. George informed me they would not provide me necessary reasonable accommodations to put my bar admission before the entire Supreme Court of California on an ADA challenge because, in Mr Olrich's words," "you mean f people are quadraplegic, do not have arms, or have learning disbailities we have to provide scribes or this voice-recognition assisitive device to enable them to place their pleadings in written format to participate in our courts? No, we're not going to license any attorney in our state who requires a scribe o this device."

I am still fighting this fight, as my case, United States Supreme COurt, DOcket No. 05-7771, is set for conference for Feb. 17, 2006. (The Supreme Court of California consented to federal court jurisdiction in the Middle District of Florida.)

So, I say if Court systems of the States canot manage to clean up their act and obey the ADA accessibility mandates in all aspects, then all these proposals for businesses should be unequivocally rejected.

I have also faced overwhelming barriers to communication and transportation accommodations at numerous businesses suject to Title III.

Until there is full ocmpliance by employers, public entities, and business across the board, and a critical mass of the disabled in the bar and on the bench of every State and in the Federal Judiciary, the proposals suggested by the law review article are inappropriate and intended to obliterate the hard-fought for protections disabled people have been fortunate enought to get under the ADA.

As far as how weel America is doing to comply with the ADA, just two days ago I was on the Volokh Conspiracy blog, and two posters were aloowed to say:
1. No mentally disabled persons should ever be allowed to be a lawyer, but instead should all be relegated to second class status as researchers; and
2. The ADA is a stupid law.

When I responded to these posts as offensive in a discussion of whether the present formulations of bar examinations violate the ADA, Eugene Volokh sent me a "warning" email retaliating against me, removing the posts, and informing me my Fist Amendment rights would be censored if I continued to post on mainstream blogs about the ADA (instead of taking the ADA discussion over where the disabled people post). On another blog, when I posted about the ADA needs of disabled people who ride horses for therapy in the mainstreasm, I was banished to go post on the disabled blogs after being told to join the Special Olympics (I am not retarded, I am autistic with a savant IQ). Why is there so little understanding of an equal access policy?

Illegal discrimination is alive and well, and disabled people need all the help they can get.

My take on it is there wouldn't be so-called serial filers if there were not serial ADA violaters. Another thing, if we are going to call law firms that specialize in ADA litigation "serial filers," why don't we call personal injury law firms or landlord/tenant law frms or collections firms for businesses "serial filers" as well?

Because IT IS ALL ABOUT DISCRIMINATION against the disabled, that's why. And it will continue to be, until the disabled achieve equality.

11:54 AM  
Blogger scap64 said...

"IT IS ALL ABOUT DISCRIMINATION against the disabled"

Sad, but true.

Here's one recent ADA story:

Both articles are about the same situation. First one is a press release sent out on Thanksgiving 2005; the second one is an editorial by Dr. Gary Namie from

2:14 AM  

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