WALTER OLSON, CATO INSTITUTE
Each year thousands of small and large businesses, non-profits, and organizations are hit with drive-by ADA claims, typically batch-produced affairs in which a complainant out of the blue claims to have found something not fully accessible to disabled users about the target’s operations and goes on to negotiate a settlement that includes ample attorneys’ fees.
Because ADA requirements are both obscure and voluminous and even compliance experts do not agree among themselves how much accommodation counts as enough, potential violations can be found at most businesses. While the ADA is a national law, much of the mass filing of accessibility complaints goes on under state laws that piggyback or expand on the federal version, often with added features enhancing damages or attorney’s fee entitlements.
It has been hard to get state-level relief from the depredations of the filing mills, since lawyers and disabled-rights activists can make for a formidable lobbying combination. But a piece of legislation just signed by Gov. John Kasich in Ohio, and an unrelated ruling in the California state courts, at least offer tiny rays of hope.
Ohio’s HB 271 provides that in order to collect automatic attorneys’ fees under state accessibility law, a complainant must notify the business concerned, which then has 15 business days to respond and 60 days to remedy the violation.” The law, which goes into effect in March, is itself a bit of a compromise: it excludes housing discrimination claims, and provides that even a complaint filed without notice or opportunity to correct can still collect fees if a judge finds such payment appropriate. A similar bill on a national scale passed the U.S. House of Representatives last February but went nowhere in the U.S. Senate, and is likely to muster less support in the new House.
In California, meanwhile, a state court has ruled that the distinctively harsh Unruh Act, which awards automatic damages in the thousands of dollars each to prevailing civil rights complainants whether or not they can prove any injury to themselves, does not apply as a matter of law to complaints against websites. Because of ongoing uncertainty about whether the ADA applies to websites, defendants across the country have been deluged with web accessibility lawsuits in recent years; if the ruling sticks, they will at least be spared the extra-high damages of the California version.
Used with permission of CATO Institute / CC BY-NC-SA 4.0
Walter Olson is a senior fellow at the Cato Institute’s Center for Constitutional Studies. His books include The Rule of Lawyers, on mass litigation, The Excuse Factory, on lawsuits in the workplace, and most recently Schools for Misrule, on the state of the law schools. His first book, The Litigation Explosion, was one of the most widely discussed general-audience books on law of its time. It led the Washington Post to dub him “intellectual guru of tort reform.” He blogs at Overlawyered.com.