By Hannah Albarazi

Law360 (November 14, 2021, 8:02 PM EST) -- As business owners nationwide struggle to weather the pandemic, thousands have been hit with lawsuits alleging failure to comply with the accessibility standards of the Americans with Disabilities Act, prompting renewed calls for reforms to protect inadvertently noncompliant business owners from litigation.

While business owners say they're being unfairly targeted by serial litigants for nonexistent or trivial violations, disability advocates argue that businesses have known the rules for over three decades and enforcement suits are exactly what the law stipulates — and are the best way to ensure businesses comply.

Tane Chan, who has owned and operated The Wok Shop in San Francisco's Chinatown neighborhood for 55 years, was disappointed when her store was hit with an ADA lawsuit in July.

"I was sort of taken aback by it," Chan tells Law360, noting people who use wheelchairs frequently come into her store and move around with ease.

Orlando Garcia sued Chan's landlord in July, alleging that the aisles of Chan's store weren't wide enough in certain spots and that the store lacked proper accessibility signage.

Garcia has sued more than 800 California businesses in federal court for violations of the ADA, filing most of those suits during the pandemic, according to a search of federal PACER records.

Three months after filing the suit, Garcia and Chan's landlord reached a settlement, Chan paid $6,562.50 to reimburse her landlord, and a California federal judge ordered the case dismissed. Chan says she's outfitted her businesses with ADA signage and removed boxes of merchandise that had been jutting out into an aisle.

Chan says that even though she believes the width of her aisles met the ADA's requirements and were wide enough to accommodate people using wheelchairs, she didn't want to fight back.

"Business is slow, that's a lot of money. But what could I do? My hands were tied," Chan says. "I don't pay it and I'm going to be in violation, and then they're going to come after me and maybe put handcuffs on me. No, I didn't want any of that."

Chan's situation is not unusual.

ADA Title III Lawsuits on the Rise

Chan is among a growing number of business owners hit with lawsuits alleging violations of Title III of the ADA, which provides for equal access and reasonable accommodation to public places and commercial facilities.

The volume of Title III ADA lawsuits filed annually has nearly quadrupled from fewer than 3,000 suits in 2013 to more than 11,000 in 2019, according to filings analyzed by attorneys at Seyfarth Shaw LLP, a law firm that routinely defends businesses against such suits.

The pandemic slowed the upward trend slightly, with the annual federal filings of these types of cases dropping 1% in 2020. But in 2021, the filings appear to have rebounded, with more than 6,300 suits filed in just the first half of the year.


Driving this increase are serial litigants like Garcia and California attorney Scott Norris Johnson, who has sued over 5,000 California businesses for violations of the ADA since 2004, according to a search of the federal PACER system.

Johnson, who is quadriplegic, has filed more than 1,500 ADA suits since the beginning of the COVID-19 pandemic, a time when small businesses have struggled with cash flow and, in some cases, shut their doors permanently.

In one day alone in early November, Johnson's attorneys at the Center for Disability Access — a for-profit wing of the law firm Potter Handy LLP — filed 10 ADA complaints against businesses ranging from a bagel shop to a Vietnamese restaurant. 

Attorneys for Garcia and Johnson didn't immediately respond to Law360's requests for comment.

California resident Albert Dytch, who uses a wheelchair and has filed 180 lawsuits to enforce the ADA over the past 12 years, stresses that a violation of the ADA is a violation of the civil rights of those with disabilities.

He says that he files ADA lawsuits to make the world more accessible to people with disabilities.

Dytch tells Law360 that relatively few people "have the time, energy, courage, and fortitude to insist that these rights are honored and protected in accordance with the law."

"That's why the burden of enforcement falls to only a few," he says.

A Landmark Act

Robert D. Dinerstein, a professor of law at American University's Washington College of Law and the director of the Disability Rights Law Clinic, tells Law360 that it's important to remember what the landscape looked like before the ADA made access for people with disabilities the law.

"For far too long, people with disabilities were segregated in institutions or other separate settings and did not have access to the wide range of public settings in which others participate automatically and without a second thought," Dinerstein says.

The first accessibility law in the U.S., the Architectural Barriers Act of 1968, required that any buildings or facilities designed, built or funded by federal dollars must be accessible to persons with disabilities.

In 1973, President Richard Nixon signed the Rehabilitation Act, requiring equal access for those with disabilities to federal employment and to programs and activities funded by federal agencies. But follow-on regulations defining discrimination in the context of disability and laying out enforcement mechanisms were slow to come. It wasn't until 1977, after activists in San Francisco protested the delay by taking over a federal building for over three weeks, that the federal government finally issued such regulations.

President George H.W. Bush vastly expanded accessibility laws in 1990 when he signed the bipartisan-supported Americans with Disabilities Act, which prohibits discrimination against people with disabilities and requires reasonable accommodation in schools, on transit vehicles, in restaurants and other areas of public life.

Among the most significant effects of the ADA is the removal of physical barriers in public places, the creation of curb cuts on sidewalks that help wheelchairs cross streets and the addition of ramps and elevators to improve access to buildings and various modes of transportation.

People with disabilities make up a sizable portion of the U.S. population. Roughly 61 million adults, or nearly 1 in 4, live with a disability and about 1 in 8 adults have serious difficulty walking or climbing stairs, according to the Centers for Disease Control and Prevention's 2019 data.

The ADA empowers individuals to enforce compliance with the law via private lawsuits and allows plaintiffs to recover legal fees and expenses if they prevail. It also empowers the U.S. Department of Justice to enforce the law. While the DOJ has brought hundreds of cases since the law's inception, private actions have constituted the vast majority of ADA suits.

The Biden administration, however, has indicated that it intends to increase enforcement of Title III of the ADA. On Nov. 10, the DOJ brought a lawsuit against Uber accusing it of discriminating against passengers with disabilities by charging them "wait time" fees because they often need more time to get into a vehicle. The DOJ accused the ride-hailing giant of not providing "reasonable modifications" to its policies.

Questioning ADA Plaintiffs' Motives

In response to a wave of lawsuits filed against Chinatown businesses over the summer, San Francisco District Attorney Chesa Boudin launched an investigation looking at whether the suits are frivolous and a criminal abuse of the legal process.

Boudin said the probe is in response to complaints of "frivolous lawsuits intentionally targeting small businesses in Chinatown — often owned by monolingual immigrants — that attempt to undermine the ADA by using it to extort settlements rather than vindicating disability rights."

Attorney Philip H. Stillman of Stillman & Associates, who routinely defends Marriott hotels and other businesses in California against so-called serial ADA litigants, estimates that over 90% of ADA cases end in settlements, which routinely include a cash payment to the plaintiff in addition to remediation of the purported ADA violations.

The problem, Stillman says, is the "bounty hunter" method of private enforcement of the ADA.

Stillman bemoans "a cottage industry of lawyers" filing thousands of ADA complaints each year, "betting that a business will settle rather than fight the expense."

But California attorney Tanya Moore of the Moore Law Firm PC, who represents Dytch and other plaintiffs who have brought private enforcement actions under the ADA, says the criticism is misplaced.

Moore tells Law360 that enforcement actions against noncompliant businesses help to realize the ADA's vision of a country where all persons enjoy equal access to public accommodations.

"People should be outraged that now, 30 years after the passage of the ADA, persons with disabilities are still denied access," Moore says. "Instead, the attack is on the disabled, claiming that they are harassing businesses, some to the point of closure, and making a mockery of the legal system. It is akin to the populace screaming about speed traps rather than at the violators who, by speeding, endanger the lives of others."

Moore says businesses that follow the law have no reason to worry, while suits against noncomplying businesses manifest the very plan Congress intended — for private litigants to enforce the rules.

"Because businesses have a loud voice, the media frames the argument as an attack on businesses, rather than the epidemic of noncompliance that permeates every nook and cranny of this country," Moore says.

Past Efforts to Amend the ADA

The ADA has been amended once since its passage, following U.S. Supreme Court decisions that narrowed who was covered by the law. That 2008 amendment clarified and broadened the definition of a covered disability.

Over the last decade, proposed congressional amendments seeking to strengthen ADA protections haven't gained much traction. One such proposed amendment sought to apply the ADA's public accommodations requirements to air travel and provide a private cause of action for any violations. Another sought to establish a federal Office of Disability Policy within the legislative branch to evaluate the effect proposed laws would have on individuals with disabilities.

Responding to concerns of the business community, members of Congress have repeatedly proposed "ADA notification laws" that aim to change the process by which a person with a disability can sue over a nonaccessible public place.

Republicans in Congress introduced the ADA Notification Act of 2000, which would have required businesses to be given notice of alleged ADA violations and 90 days to fix them, before being sued. It would also have imposed a sanction upon attorneys who didn't provide proper notification on behalf of their clients to noncompliant businesses.

Similar bills were introduced seven times between 2001 and 2013. Over time, the proposed sanction against noncompliant attorneys was removed from the proposals' texts. Still, the bills did not advance.

Republican lawmakers didn't give up, introducing the ADA Education and Reform Acts of 2015, 2016 and 2017. Those proposals sought to require that before the commencement of private civil actions businesses would receive notice of alleged ADA violations and then have 60 days to either correct them or provide a written description outlining promised improvements. The bills also sought to develop a program to educate state and local governments and property owners on ADA compliance.

In 2018, the ADA Education and Reform Act of 2017 came up for a vote in the House of Representatives, with 12 Democrats voting in favor, including six in California, among them Rep. Jackie Speier, whose district includes a large swath of San Francisco.

The bill passed the House by a slim margin before languishing in the Senate.

Stillman of Stillman & Associates, who says he has won at least 70 judgments of dismissal against ADA Title III suits for his clients since February, tells Law360 he supports a 60-day notice period at the end of which a plaintiff could sue if the business failed to take steps to correct the alleged violation.

"It cuts down on the cottage industry of a disabled person simply cruising up and down the street suing every business that he sees, regardless of whether he even went into the business," Stillman says.

While the hotel and restaurant industries are at the forefront of lobbying in favor of ADA reforms, Stillman says such reforms haven't gained widespread support because "no one wants to be portrayed as 'anti-disabled.'"

But Moore, who represents plaintiffs enforcing the ADA, argues that a notice-and-curing period would reduce the need for a business to proactively comply with the ADA and worries that businesses wouldn't comply unless they've been hit with a pre-suit notice.

Dinerstein argues that Title III of the ADA and its regulations "strike the right balance" between the needs of people with disabilities and small businesses in requiring reasonable modifications.

"Although the ADA was passed with overwhelming bipartisan majorities in 1990, we are in a very different time politically and advocates are rightly concerned that efforts to amend the ADA could open up a can of worms," Dinerstein says.

Reevaluating Incentives

While disability advocates, such as the National Center for Learning Disabilities, have dubbed ADA notification legislation "an attack on disability rights," businesses say notice periods could encourage compliance while also reducing the financial incentives to sue, thereby cutting down on lawsuits against noncompliant businesses.

Stillman argues for the elimination of both the financial incentive built into the ADA, in the form of attorney fees, and monetary damages provided for in California by the state's long-standing anti-discrimination law, the Unruh Civil Rights Act.

The state's Unruh Act, enacted in 1959, allows plaintiffs in ADA Title III lawsuits to recover up to $4,000 per violation of the ADA. Stillman says the prospect of having to pay monetary damages may prompt businesses to settle suits they'd otherwise fight.

"That is the problem with the current state of ADA litigation, particularly in California," Stillman says. "Without the attorneys' fees incentive and the high degree of likelihood in getting a settlement rather than proving their cases, it would no longer be an industry and would return to doing its real purpose of increasing access for the disabled."

Stillman suggests that allowing the prevailing party — not just the plaintiff — to collect attorney fees would also disincentivize mass filings and allow businesses wrongly accused to recoup the fees necessary to prove their case.

But Dinerstein stresses that "we have to be careful not to throw out the baby with the bathwater" and that attorney fees awards "are necessary to permit plaintiffs of modest means to challenge discriminatory practices."

"Most of the lawyers I know who bring disability rights litigation are idealistic and committed to pursuing matters that decrease if not eliminate the discrimination people with disabilities experience," Dinerstein says.

A Carrot, not Just a Stick

Another way to increase compliance, without more lawsuits, is to have governments step in with incentives.

Dinerstein notes that government incentives — including expanded tax deductions for ADA expenses that businesses might incur — could help take the burden off small businesses and encourage them to proactively increase accessibility.

In California, for example, a state program assists businesses in obtaining low-cost loans to help them meet ADA requirements.

"Through credits and deductions, businesses should be incentivized to make their businesses accessible without lawsuits," Stillman says.

The staff of the California Assembly Judiciary Committee — which is tasked with investigating and studying proposed state bills — have also suggested that governments could offer funding in the form of grants to very small businesses to help them upgrade their premises.

Doron Dorfman, an associate professor at Syracuse University College of Law, who has focused much of his research on disability law, agrees that the government could play a bigger role and that municipalities, in particular, should take an active role in ensuring accessibility at the design stage when approving building plans.

Stopping violations before they happen can go a long way toward fighting stigmas against people with disabilities, Dorfman says.

"Private enforcement models often create this stigma against the enforcers, the plaintiffs, who are just enforcing a law that's been in place for three decades," Dorfman says.

The Future of ADA Reform Efforts

Reform efforts following from the ADA Education and Reform Act of 2017 have continued to focus on adding a proposed notice provision to the ADA, reducing the financial incentives of filing such suits, and incentivizing businesses to comply with the ADA by offsetting the costs of bringing a property up to code.

In January, Rep. Ken Calvert, R-Calif., introduced H.R. 77, a bill also known as the ACCESS Act, which would amend the ADA to require that businesses be given written notice identifying the barrier to access and time to cure it. Failure to meet any of the required steps would allow the suit to move forward.

Calvert says the bill would address the increasing number of ADA lawsuits that are aimed at financial settlements rather than appropriate modifications.

"Small-business owners want to comply with the ADA and give their customers access to their business," Calvert told Law360 in early November.

He claims his bill ensures businesses have ample time to make improvements before being subjected to lawsuits.

"Trial lawyers who have exploited the ADA and become serial litigants targeting small businesses have opposed and worked to fight off reforms to the law," Calvert said.

"Protecting disabled Americans and [protecting] small-business owners from predatory lawsuits are not mutually exclusive goals," Calvert added. "We continue to work with all stakeholders to address any outstanding concerns with the ACCESS Act and work to advance this common sense legislation."

Dinerstein says he sees the ACCESS Act as a "misguided attempt to address a problem that has been vastly exaggerated."

He argues the ACCESS Act "would significantly burden people with disabilities and enact a requirement — prior notice — that other civil rights plaintiffs are not required to provide."

Accessibility for All

Disability advocates largely agree that more needs to be done to accommodate people with disabilities.

In early November, disability rights advocates scored a win when Congress created a $1.75 billion fund aimed at making transit stations accessible, part of the much larger $1.2 trillion infrastructure package.

According to the Federal Transit Administration, about a fifth of U.S. transit stations were not fully accessible in 2019, making it more difficult for people with disabilities to commute to work and engage in other aspects of civic life.

Another area of inaccessibility for people with disabilities — and consequently, another area for ADA litigation — is the internet.

The Online Accessibility Act, which was reintroduced on Capitol Hill in February, would amend the ADA to improve web accessibility while also slowing the flood of ADA suits targeting the issue.

The legislation would establish digital accessibility compliance standards and a mandatory administrative process for claimants to exhaust — with a notice-and-curing period — before the government or private citizens can bring suit.

But the bill hasn't received broad support from the disability rights community. Disability rights lawyer Lainey Feingold penned a blog post stating that while persons with disabilities can now file a lawsuit to ensure they can use websites and apps, the Online Accessibility Act would not allow a private lawsuit until a complaint has first been lodged with the DOJ.

Disability rights advocates are also pushing for fair wages for people with disabilities.

In October, the Biden administration proposed ending preferential contracts with nonprofits that rely on Section 14(c) of the Fair Labor Standards Act, which allows employers to pay workers with physical or mental disabilities at rates below the federal wage floor of $7.25 per hour in certain circumstances.

Disability advocates are continuing to push for legislation that provides housing and health services to people with disabilities, as the country's elderly population grows and people suffering long-term health effects of COVID-19 require long-term care.

As the pandemic begins to ease, more people are going back into brick-and-mortar businesses, which could bring more ADA accessibility lawsuits. It also means more people are likely to benefit from improved access.

Chan, the owner of The Wok Shop in San Francisco, tells Law360 that enforcement of ADA rules protecting people with physical disabilities could be improved.

It's "a little over the top," she says, for mom-and-pop shops to have to choose between paying a defense attorney thousands of dollars to fight an ADA lawsuit or paying a plaintiff thousands of dollars to settle it, especially when the actual costs of remediation are often negligible.

Even after being hit with an ADA lawsuit herself, Chan says she still believes the protections provided by the ADA are necessary, stressing that "we have to take care of those that need assistance."

--Editing by Orlando Lorenzo.

For a reprint of this article, please contact reprints@law360.com.