Relief in Sight for Businesses Held Hostage by ADA Shakedowns

By: T. Mickell Jimenez, Co-Chair Labor & Employment Practice Group

February 16, 2018 - After years of falling flat, the House of Representatives has passed a bill that will cut the knees off abusive Americans with Disabilities Act lawsuits. The House passed the ADA Education and Reform Act of 2017 on a 225-192 vote. Importantly, the bill would give restaurant and other business owners up to four months (reduced from the original six-month proposal) to comply with the ADA before litigation can be initiated. The bill would also require the Judicial Conference of the United States to develop a model program for alternative dispute resolution like mediation. Bill backers like Rep. Bob Goodlatte, R-Va., the House Judiciary Committee chairman, said the legislation would help put a stop to abuses of the system that amount to shakedowns of small businesses for technical ADA violations.

“The ADA’s private right of action, which was originally intended to be the primary enforcement mechanism to achieve greater access, has instead encouraged a cottage industry of costly and wasteful litigation that neither benefits the business nor disabled individuals seeking more accessibility,” Goodlatte said.

The bill now heads over to the Senate. If successful, the bill would give businesses four months to demonstrate a willingness to correct a violation of the ADA before a potential plaintiff can sue. A potential plaintiff would be required to notify a business owner of an alleged violation in writing and give the business an opportunity to provide a written response about the violation and how it may be remediated if necessary.

A plaintiff would only be allowed to proceed to court if the business does not correct the violation. Goodlatte said the changes would preserve the original intent of the ADA but curb “drive-by lawsuits” and other abuses. Sometimes the existing law works as intended but “[m]ost business owners, however, feel blindsided when they’re sued for violations they were unaware of,” he said.

There are critics of the bill that believe the amendment will undermine the intent of the ADA and the protections afforded to disabled individuals. I applaud Congress’ attempt to strike a balance between the needs of the disabled and the abuse of the ADA by these drive-by litigants, their unethical attorneys, and their financial backers.

Clyde Snow will keep you posted on developments.