December 1, 2017

ADA Reform: Justice Delayed is Justice Denied



By Sean Pevsner, J.D. / 07.21.2017
Brewminate Legal Analyst


In its 1955 Brown v. Board of Education of Topeka Kansas, the US Supreme Court ruled that lower courts must:

“enter such orders and decrees consistent with this opinion as are necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases.”

This decision was the Court’s attempt to provide guidance to lower courts and state school boards on how to comply with the Court’s 1954 Brown v. Board of Education of Topeka Kansas ruling that segregation of the races in public education was unconstitutional.   Most people believed that the “with all deliberate speed” language gave states an opportunity to delay justice to students of color.[1]  The Court delayed justice to these students, because it did not want to anger racially prejudiced people.  The Court could have ordered all states to integrate their public schools immediately. This “with all deliberate speed” decision is a prime example of the phrase: “Justice delayed is justice denied.”

Letter from Birmingham City Jail cover from the original 1963 AFSC edition

As the Reverend Dr. Martin Luther King, Jr. wrote in Letter from a Birmingham Jail, “[t]his “Wait” has almost always meant “Never.” We must come to see, with one of our distinguished jurists, that ‘justice too long delayed is justice denied.’” Dr. King was arrested for peacefully protesting the State of Alabama’s segregation laws prohibiting African Americans from using the public facilities that white people used.[2]  People kept telling Dr. King to wait until the states addressed the racial tensions by passing state laws prohibiting segregation.[3]  Despite repeated attempts by African Americans to work with state officials, segregation laws remained in effect until the federal government enacted the Civil Rights Act of 1964.[4]  Other civil rights movements, such the disability rights movement, encountered the same barriers to equality.[5]  

Disability rights organizations staged numerous protests to gain equal access to public transportation, public facilitates and community based services.[6]  One of the most prominent organizations, ADAPT, forced the Denver, Colorado public transportation department to provide wheelchair lifts on all its buses.  From July 5 to 6, 1978, ADAPT members blocked the entrances to city businesses until Denver officials agreed to provide wheelchair lifts.  The members who staged this protest were known as “The Gang of 19.”[7] ADAPT went on to do the same protest in other cities around the country, forcing local transportation departments to provide wheelchair lifts on all public buses.[8]  Other disability rights organizations had mass sit-ins to pressure Congress to pass and properly implement Section 504 of the Rehabilitation Act of 1973 (“Section 504”).[9]  Section 504 prohibits entities which receive federal funds from discriminating against people with disabilities.  The Individuals with Disabilities Education Act (“IDEA”) was subsequently enacted in 1975.  The IDEA mandates that public schools provide all students with disabilities a free and appropriate public education.[10]  In 1990, Congress passed the Americans with Disabilities Act (“ADA”), which extended the disability discrimination prohibition to the private sector as well as the public sector.[11] Disability rights activists assisted congressional leaders in passing the ADA by staging massive protests in Washington, DC when the ADA bill stalled in congressional committees.  Several people with disabilities got out of their wheelchairs and crawled up the stairs of the Capitol.  Others sat in the Capitol rotunda until Congress proceeded with the bill.[12]       

The ADA passed with broad bipartisan support in 1990.  President George Herbert Walker Bush, a Republican, worked with the disability community and Democrats such as Senators Tom Harkin of Iowa and Ted Kennedy of Massachusetts.  The majority of Republicans in both the Senate and House of Representatives supported the ADA in 1990.  The final vote in the Senate was 76-8, and the final vote in the House of Representatives was 403-20.[13]  When President Bush signed the ADA into law on July 26, 1990, he made the following statement:  

“Three weeks ago we celebrated our nation’s Independence Day. Today we’re here to rejoice in and celebrate another “independence day,” one that is long overdue. With today’s signing of the landmark Americans for Disabilities Act, every man, woman, and child with a disability can now pass through once-closed doors into a bright new era of equality, independence, and freedom. As I look around at all these joyous faces, I remember clearly how many years of dedicated commitment have gone into making this historic new civil rights act a reality. It’s been the work of a true coalition, a strong and inspiring coalition of people who have shared both a dream and a passionate determination to make that dream come true. It’s been a coalition in the finest spirit—a joining of Democrats and Republicans, of the legislative and the executive branches, of Federal and State agencies, of public officials and private citizens, of people with disabilities and without.”[14]

Under Title III of the ADA, private companies are prohibited from discriminating against people with disabilities in the companies’ provision of goods and services.[15]  Companies must make their facilities, goods and services accessible to people with disabilities.  The ADA has accessibility guidelines called the Americans with Disabilities Act Accessibility Guidelines (“ADAAG“) with which companies must comply.  The ADAAG provide specific schemes for facility and service accessibility such as specifications for wheelchair ramps, door widths, hallway widths, restrooms and parking spaces, among others.[16]  The ADAAG is readily available to all companies to use as a reference when making their facilities and services accessible.  The ADA provides protections for companies against undue burdens or fundamental alteration to their businesses.  

Title III of the ADA provides that private entities do not need to make modifications to their services or goods, if such modifications “would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations.”[17] Title III further provides that private entities do not need to provide accommodations or modifications if such accommodations or modifications would pose an undue burden to a given entity’s financial situation or pose a significant difficulty in providing such accommodations or modifications.[18]  In 1990, President Bush and an overwhelming majority in both houses of Congress believed that these safeguards were sufficient to protect the interests of businesses.[19] However, over the years, people have claimed that the ADA has intruded on the private sector[20] because the ADA provides prevailing plaintiffs with the ability to obtain their attorney’s fees from defendants.[21]  Private companies have argued that plaintiff attorneys abuse this provision to extort money out of businesses.       

Mission Ranch Hotel and Restaurant, Carmel by the Sea, California

The most well-known case which involved alleged ADA lawsuit abuse was the lawsuit against Clint Eastwood’s Mission Ranch resort hotel in 1997.  A woman with a disability sued Eastwood for not ensuring that his hotel was compliant with the accessibility guidelines of the ADA.  She claimed that the hotel lacked accessible bathrooms.  She further claimed that the only wheelchair accessible room cost $225 per night, whereas other rooms cost just $85 per night.  Eastwood argued that the lawsuit was a shakedown and was frivolous.  The case went to trial, and the jury found that Eastwood made only minor violations of the California accessibility law. The plaintiff sought attorney’s fees in the amount of $577,000 under the ADA and $25,000 in damages under the California accessibility law,[22] but the jury denied the plaintiff’s requests for attorney’s fees and monetary damages. In light of this lawsuit, Eastwood joined a group of organizations that were lobbying Congress to amend the ADA to require plaintiffs to notify businesses of ADA violations and give them 90 days to correct the violations.[23]  

Republican Congressman Mark Foley of Florida introduced the ADA Notification Act in 2001.  Under this act, a plaintiff had to comply with 5 requirements:

“(1) before filing the complaint, the plaintiff [must provide] the defendant notice of the alleged violation (by registered mail or in person); (2) the notice identified the specific facts that constitute the alleged violation, including identification of the location at which, and the date on which, the violation occurred; (3) at least 90 days have elapsed after the date on which the notice was so provided; (4) the notice informed the defendant that the civil action could not be commenced until the expiration of such 90-day period; and (5) the complaint states that, as of the date on which the complaint is filed, the defendant has not corrected the alleged violation.”

If a plaintiff did not comply with the above-mentioned requirements, the act provided that:

“(1) [a] court shall impose an appropriate sanction upon the attorneys involved; and (2) if the criteria are subsequently met and the civil action proceeds, [a] court may not allow the plaintiff attorneys’ fees or costs.”[24]

Congressman Foley’s apparent intent was to balance the ability of people with disabilities to assert their rights under the ADA with the ability of businesses to comply with the ADA without incurring exorbitant legal fees.  Foley indicated that some businesses in his congressional district were incurring significant attorney’s fees both from their defense of ADA lawsuits and from the prevailing plaintiffs’ attorney’s fees.  Due to heavy opposition from the disability community and the majority of Democrats in Congress, this act did not pass.  

Since then, other representatives have reintroduced the ADA Notification Act.  Each time, the disability community and a majority of Democrats defeated the act.  Opponents of Foley’s bill have argued that businesses have ample time to comply with the ADA and that the bill would give some businesses excuses not comply with the law, thereby depriving people with disabilities access to their facilities and services.  Moreover, the ADA protects private entities from undue financial burdens and fundamental alterations of their businesses as discussed above.    

It is true that there are frivolous ADA lawsuits brought by unscrupulous attorneys and plaintiffs.  These lawsuits abuse the provisions of the ADA by filing claims on minor violations, such as an insufficient number of handicapped parking spaces, a lack of proper signage or an incorrect placement of grab bars in public restrooms.  This abuse is most prevalent in states which have state laws providing monetary damages for ADA violations.[25]  California and Minnesota are the two main states where ADA lawsuit abuse are the most publicized.[26]

The most recent iteration of the ADA Notification Act has come from Republican Congressman Ted Poe of Texas, styled as the ADA Education and Reform Act of 2017 (the “Act”).  Poe delivered a speech citing several alleged ADA lawsuits, including a California doughnut store managed by a person with a physical disability.  In his speech, Poe stated that the doughnut store manager uses a wheelchair, and that the ADA lawsuit against her store included alleged minor violations such as “a mislabeled table, door handles that were off by a few centimeters, and the trash can in the bathroom was in the wrong place.”[27]  The manager in fact has cerebral palsy and was a victim of serial ADA bad faith lawsuits brought by a California law firm.  This firm used people with disabilities to serve as plaintiffs in more than 700 lawsuits.[28]  Other attorneys in California have used the same methods to file unmeritorious ADA claims against small businesses.  Instead of defending themselves against these claims, these businesses settled.[29]  

Under the Act proposed by Congressman Poe, it would be unlawful for a plaintiff to send a demand letter:

“if such letter or communication does not specify in detail the circumstances under which an individual was actually denied access to a public accommodation, including the address of property, the specific sections of the Americans with Disabilities Act alleged to have been violated, whether a request for assistance in removing an architectural barrier to access was made, and whether the barrier to access was a permanent or temporary barrier.”[30]

This provision is intended to notify prospective defendants of the specific alleged violations of the ADAAG.  The proposed Act would essentially give businesses 180 days to correct their ADAAG violations.[31]  The Act further provides for fines on plaintiffs who failed to issue such specific letters to prospective defendants under Title 18 of the United States Code.[32]  Title 18 is the federal government’s crime and criminal procedure section.[33]  

Congressman Ted Poe

It is unclear what exact criminal provision that Congressman Poe would want courts to apply to plaintiffs who violated the Act.  Whatever his intent is, it is a paradox to impose federal criminal liability on plaintiffs seeking to assert their civil rights under a federal law which specifically provides for and protects such rights. If enacted, this provision of the Act would likely have a chilling effect on the ability of people with disabilities to assert their rights under the ADA, as any court could impose on them federal criminal penalties.  Even if plaintiffs complied with the Act, a court could nevertheless find a way to impose such penalties.  For example, a federal judge could rule that a given plaintiff did not issue a letter with enough specifications on the alleged violations to a given defendant.  Such a result goes against the spirit and intent of not only the ADA, but of the United States Constitution.  

Americans should never face criminal charges for asserting their civil rights under the Constitution or antidiscrimination laws.  It is reasonable to want to prevent frivolous and vexatious lawsuits.  However, Congress should never impose criminal liability on American citizens for seeking judicial redress for violations of their civil rights.  

The federal Civil Rights Act of 1964 does not impose criminal liability on people who assert their civil rights under the same law nor does it require people, against whom private businesses discriminate on the basis of race, religion or gender, to notify said businesses of the alleged discrimination before they file a lawsuit.  The federal civil rights does not give businesses 180 days to resolve its discriminatory acts.  People with disabilities should have the same access to legal remedies to ADA violations as a person who encounters discrimination would have under the federal civil rights act.   The ADA has been the law of the land for 27 years.  Even though the Act would only apply to the ADAAG requirements, those requirements are similar in nature to state fire and health codes.  Businesses do not get additional time to comply with state fire and health codes.  In fact, businesses could receive very stiff monetary and criminal penalties for not complying with these codes.[34]  Businesses should automatically comply with the ADA as they do with fire and health codes.     

There are more protections are needed at the state level to reign in frivolous ADA lawsuits. However, Congressman Poe’s bill is flawed, and would only serve to harm the disability community. Title III of the ADA provides no monetary damages for plaintiffs in lawsuits.  It is states such as California and Minnesota that provides monetary damages; it is therefore state law that needs to be reformed, and not the ADA.   

The ADA does allow for attorney’s fees for plaintiffs if they prevail.  However, federal courts have the authority to impose sanctions on plaintiffs who file bad faith lawsuits.[35]  If businesses make a good faith effort to comply with the ADAAG, they should definitely fight against frivolous ADA lawsuits.  In addition to seeking sanctions on bad faith plaintiffs, businesses can file complaints on the attorneys for these plaintiffs with the state bar associations.  Under 3.01 of the Texas Disciplinary Rule of Professional Conduct, attorneys cannot file unmeritorious lawsuits.[36]  Other state bar associations have similar rules against frivolous lawsuits.[37]  

Businesses should make their places accessible as a matter of course. People with disabilities should not have to wait at least 180 days to seek redress for violations of their civil rights, when the businesses had 27 years to comply with the law. Congressman Poe recently announced that he will retire at the end of his 2018 term in part due to his leukemia.  Ironically, Congressman Poe has a disability under the ADA Amendments Act.  Even though Poe is retiring, his proposed law will be still on the Republicans’ agenda. We must be vigilant in defeating his anti-ADA bill.  Currently, the Act has 89 cosponsors in the House of Representatives, including 11 Democrats.[38]  With a Republican majority in both the House and Senate, along with a President who mocked a reporter with a disability,[39] the possibility of this bill becoming law is significantly high.  

The ADA Education and Reform Act would delay justice for people with disabilities as it would give businesses the opportunity to avoid complying with the law indefinitely.  A person with a disability may properly submit notice to a business but said person might not follow up with the business in 180 days to ensure it has corrected its ADA violations.  Under the proposed law, if another person with a disability encounters the same violations, that person must give said business notice, and the 180-day clock resets.  In 1955, the Supreme Court made an egregious error by allowing states to deny justice to African Americans. Today, people with disabilities face the threat of the same denial of justice. Ted Poe’s bill would deny people with disability to both equal access to public accommodations and to the ability to seek justice.

Notes

  1. https://www.americanprogress.org/issues/general/news/2004/04/12/660/all-deliberate-speed/
  2. http://www.thekingcenter.org/archive/document/letter-birmingham-city-jail-0
  3. Bearing the Cross by David Garrow
  4. The Warren Court and American Politics by Lucas A. Powe
  5. https://www.adl.org/education/resources/backgrounders/disability-rights-movement, https://dredf.org/news/publications/the-history-of-the-ada/
  6. Id
  7. https://history.denverlibrary.org/news/we-will-ride-origin-disability-rights-movement-denver-0
  8. adaptmuseum.net/gallery/
  9. https://dredf.org/news/publications/the-history-of-the-ada/
  10. http://www.adainfo.org/content/history-ada
  11. The ADA does not apply to the federal government.
  12. http://www.pbs.org/independentlens/films/lives-worth-living/
  13. http://www.mn.gov/mnddc/ada-legacy/ada-legacy-moment29.html
  14. https://www.eeoc.gov/eeoc/history/35th/videos/ada_signing_text.html
  15. http://www.ada.gov/ada_title_III.htm
  16. https://www.access-board.gov/guidelines-and-standards/buildings-and-sites/113-ada-standards/background/adaag/422-a-guide-to-adaag-provisions
  17. 28 C.F.R. §36.302(a)
  18. 28 C.F.R. §36.303(a)
  19. http://thomas.loc.gov/cgi-bin/query/r?r101:@OR+%28+@1%28S.+933%29++%29
  20. http://www.inclusiondaily.com/news/access/notification.htm.  http://www.city-journal.org/html/ada-shakedown-racket-12494.html
  21. https://www.law.cornell.edu/uscode/text/42/12205
  22. http://web.archive.org/web/20040106004154/http://more.abcnews.go.com/sections/entertainment/DailyNews/clint000518.html
  23. http://commdocs.house.gov/committees/judiciary/hju66728.000/hju66728_0.HTM
  24. https://www.congress.gov/bill/107th-congress/house-bill/914
  25. http://www.adaabuse.com/.  http://hotellaw.jmbm.com/finally_relief_from_abusive_ada.html
  26. http://www.kcra.com/news/lawmakers-band-together-to-fight-driveby-ada-lawsuits/31511266. http://www.twincities.com/2016/05/30/new-minnesota-law-targets-what-critics-call-excessive-ada-lawsuits/
  27. http://poe.house.gov/2015/11/ada-education-and-reform-act-of-2015
  28. http://abc30.com/news/action-news-investigates-ada-lawsuits/1319280/
  29. http://www.ada-pros.com/california-ada-lawsuits-on-the-rise/
  30. https://www.govtrack.us/congress/bills/115/hr620/text#
  31. Id
  32. Id
  33. https://www.law.cornell.edu/uscode/text/18
  34. http://texreg.sos.state.tx.us/public/readtac$ext.TacPage?sl=R&app=9&p_dir=&p_rloc=&p_tloc=&p_ploc=&pg=1&p_tac=&ti=28&pt=1&ch=34&rl=1302.  http://www.statutes.legis.state.tx.us/Docs/HS/htm/HS.341.htm
  35. Rule 11(c)(1) of the Federal Rules of Civil Procedure
  36. https://www.legalethicstexas.com/Ethics-Resources/Rules/Texas-Disciplinary-Rules-of-Professional-Conduct/III–ADVOCATE/3-01-Meritorious-Claims-and-Contentions
  37. http://www.calbar.ca.gov/Attorneys/Conduct-Discipline/Rules/Rules-of-Professional-Conduct/Current-Rules/Rule-3-110, 3.1 Rule of the Minnesota Rules of Professional Conduct
  38. https://www.govtrack.us/congress/bills/115/hr620/text#
  39. https://www.nytimes.com/2015/11/27/us/politics/donald-trump-says-his-mocking-of-new-york-times-reporter-was-misread.html?_r=0

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