For disability activists and their lawyers, the story wasn’t new.
Only this time, “60 Minutes” was airing its version of it, highlighting for a national audience abuses by lawyers and their clients who file “drive-by” lawsuits alleging violations of the American Disabilities Act.
They’re called “drive-by” because in some states, someone can simply drive by a store or a restaurant and file a lawsuit if they see a sign in the wrong spot or a ramp that’s not located in the most accessible place.
Even hanging a restroom mirror too high or using the wrong color of blue to designate a disabled parking space can land a business in court.
Disability rights supporters criticized the “60 Minutes” piece, questioning its balance. The lack of accessibility remains a big problem, they said, far greater than lawyers who might be taking advantage of the law.
Still, thousands of such lawsuits have been filed in the more than 25 years since Congress adopted the ADA. Typically, a single lawyer might file hundreds of such suits, often with the same client named as the plaintiff.
In some cases, the suit is filed after the plaintiff visits a business establishment and notes the lack of handicapped parking spaces or wheelchair ramps. But in many other instances, businesses are sued by someone who’s either driven by or even used Google Earth to spot purported violations.
The lawsuits typically end in the same way. The plaintiff’s lawyer sends a follow-up letter offering a settlement for a few thousand dollars, less than the cost to hire a lawyer and fight the case in court.
Because it’s less expensive, quicker and easier to settle, payment is made and the problem goes away.
Legislation has been introduced in Congress that would help, amending the ADA to give businesses a chance to correct problems before facing civil action.
So far, however, the legislation hasn’t gotten far. Were it to pass, several things would have to happen before a lawsuit was considered valid.
First, the complainant would have to send a letter to the owner identifying the violation. The owner would have 60 days to respond with a written description outlining planned improvements. Owners would then have another 120 days to remove the barrier or “make substantial progress in removing the barrier.”
Only then, if no effort is made, could someone pursue civil action.
“The Americans with Disabilities Act is a good law, but seeing people use it to discriminate against small businesses for minor, technical infractions is infuriating,” said Rep. Ken Buck, R-Colorado, a co-sponsor of the legislation. “Many of these small business owners have spent their lives investing in not only their business but their communities as well, and the last thing they would want is for their store or restaurant to be inaccessible to anyone.”
Needless to say, there are plenty of legitimate ADA claims made every year. If you’re a business owner, your best course of action is to understand where you’re exposed, make sure you stay on top of compliance laws and take corrective measures to stay out of the crosshairs of serial filers.
Because ADA lawsuit plaintiffs often seek recovery for emotional distress, a standalone general liability policy won’t cover you. You’ll want an umbrella add-on that provides coverage for “discrimination and humiliation.”
The best strategy also includes purchasing an employment practices liability policy, which commonly cover ADA discrimination claims by employees and sometimes by third parties including, for example, customers at your restaurant or convenience store.
Jeff Parent is an Insurance Advisor at CCIG. Reach him at jeffp@thinkccig.com or at 720-330-7918.