The Americans with Disabilities Act, of itself, has no enforcement powers. One way that people with disabilities can seek redress for an ADA violation is by filing a lawsuit. (Mediation also is an option; see "U.S. Justice Department Mediation Program Helps Settle ADA Complaints.")
In California, that option for seeking relief has created a bit of a suit-happy phenomenon.
The number of lawsuits filed there alleging ADA access violations in buildings, sidewalks, bathrooms and other areas is easily the highest in the country. California doesn’t necessarily have more ADA violations than other states, but they do offer more financial incentive to sue.
Federal law provides that individuals who win an ADA access lawsuit are entitled only to payment of attorney’s fees and whatever steps are necessary to remedy the access problem.
But in California, state law adds considerably to the pot. Plaintiffs can recover not only attorney fees, but also a minimum of $4,000 in damages — per violation. Above and beyond those amounts, state code permits victorious plaintiffs to recover three times the amount of their actual damages (minimum $1,000) along with lawyer fees, if the judge approves them.
In 2005, almost 80 percent of the more than 900 ADA lawsuits filed in federal courts in California were from only 10 law firms or individual attorneys — and in some cases those few lawyers filed hundreds of suits on behalf of a single individual.
Some filers brought so many suits that they were declared “vexatious litigants,” and forbidden to bring any more suits in federal court without specific approval from a judge.
The upside of all these suits and financial awards is that California is now among the most physically accessible states in the country.
The downside is a negative backlash against ADA requirements and people with disabilities. Many businesses are defensive about being sued, concerned not so much with legitimate ADA compliance as with not being bullied by the few litigants who abuse the system.
“Certainly we feel that the excessive number of lawsuits is an abuse of the legal system,” says Kevin Maher, senior vice president of government affairs for the American Hotel and Lodging Association. “The issue here is not one of increasing access, because often the violations are very minor ones that could easily be corrected. This is a case of lawyers going after monetary rewards.”
But Peri Jude Radecic, acting executive director of the Arizona Center for Disability Law, asks why, if the violations are minor, the industry isn’t moving ahead to correct them.
“What may be minor to an industry could very well be major to a person with disabilities,” she says.