Congress Considers Changes to Americans with Disabilities Act to Prevent Serial Lawsuits

By Ryan Sugden

Lawsuits against businesses alleging minor violations of the Americans with Disabilities Act (ADA), often filed in bulk by a small cadre of attorneys on behalf of the same plaintiffs, are on the rise both nationally and in Colorado, and Congress is taking action to respond.

The lawsuits typically allege that a business has violated the ADA for correctable reasons—for instance handicapped parking spaces without proper signage or bathrooms without all required accessible features. These lawsuits are expensive for businesses to defend, and they often result in businesses agreeing to make minor changes to their property and pay a settlement to the plaintiff.

Proponents claim that lawsuits are necessary to get the owner's attention and bring the property or building into compliance. Detractors claim they serve only to the line the pockets of plaintiffs' attorneys. Regardless of the motivation behind the lawsuits, there is no question they are on the rise. The number of ADA lawsuits filed on account of "architectural barriers" such as parking lot and bathroom violations have nearly tripled from 2013 to 2017. Last year alone, 215 ADA lawsuits were filed in Colorado, sixth most in the country.

To address the increased litigation, Congress is considering changes to the ADA. Proposed legislation approved by the U.S. House and pending in the Senate will make three changes aimed at reducing the burden ADA litigation imposes on small businesses.

First, before a plaintiff can file a lawsuit alleging an "architectural barrier" in violation of the ADA, the plaintiff must give the business notice in writing of the alleged violation and an opportunity to fix it. The business will have 60 days to respond to the notice and an additional 60 days to correct the alleged violation.

Second, the proposed legislation will require the Department of Justice to provide training to state and local governments and small businesses on "effective and efficient strategies" for complying with the ADA. No additional funding will be provided for the training program.

Third, Congress will order the federal courts to develop a dispute resolution procedure for dealing with ADA lawsuits, including mandatory mediation and staying discovery until mediation is completed.

A bill (H.R. 620) with these proposed changes was introduced to the House of Representatives with 108 co-sponsors, and passed on a majority party line vote (Republicans in favor; Democrats opposed) in February. The bill is pending in the U.S. Senate.

If adopted and signed into the law, the bill will have a profound impact on ADA-related litigation. Vigilant businesses that take proactive steps to comply with the ADA and respond to violation notices will likely avoid the hassle and expense of litigation. While many advocacy groups claim the bill "guts" the ADA, this claim might be overblown. Providing a non-compliant business with notice of a violation and an opportunity to cure before a lawsuit is filed will promote ADA compliance and increase access for persons with disabilities, which is a primary goal of the ADA. And any business that fails to bring their establishment into compliance after receiving the notice will be liable just as before.


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