Small retail buildings constructed before ADA adopted.

The Americans with Disabilities Act (ADA) and has done much to reshape our country to make it more accessible to people with all varieties of disabilities. There is no doubt that it was one of the most important and beneficial laws enacted in the twentieth century.

However in California, there is a seamy side to the ADA and its state access law correlaries.

The ADA has combined with pre-existing state laws to create grossly disproportionate monetary penalties never intended by the drafters of either law.

Profiteers have filed thousands of lawsuits to extract monetary settlements for hypothetical “barriers,” of which no real customer has ever complained, and against mostly old buildings for not complying with new construction standards. Through what is essentially a reverse loophole, facilities intended to be mostly exempt from the ADA (i.e., those already existing when the law was enacted), are the most likely to be sued. While many of the lawsuits lack merit, defending against them is cost prohibitive, and even settling them is costly.

In my law practice, I regularly represent defendants, typically property owners and businesses, in ADA / California access law litigation. I repeatedly encounter several of the same misconceptions, often promoted by Plaintiff attorneys, about California disabled access lawsuits. This essay is the first installment of a series, each featuring a “myth” about disabled access litigation.

The first myth about disabled access lawsuits is:

Lawsuit defendants have violated the law for over 20 years: This statement is made by ADA plaintiff attorneys nearly every time their lawsuits are scrutinized by the media. It is used to justify the harsh punitive effect of a disabled access lawsuit, and the excessive payout to disabled access plaintiffs and their attorneys who troll for “violations.”

This myth starts with use of the term “violation.” Most access lawsuits involve buildings constructed before the Americans with Disabilities Act (ADA) was enacted. They were constructed in compliance with the laws in existence at the time of their construction. They have typically complied with all laws applicable to any upgrades or modifications.

The part of the ADA standards at issue in these lawsuits is for new construction and is a building code with hundreds of technical specifications. Congress intended that  “existing” buildings (i.e., buildings already in existence upon the 1990 enactment of the law) be largely exempt from the law. However, rather than have owners of old facilities do absolutely nothing, even where a barrier was obvious and easy to remove, Congress added some words in the law to nudge these owners to remove “barriers” when it is “readily achievable” to so. Congress defined readily achievable as “easily accomplished without much effort or expense.”

What was intended to be a simple objective standard of easy and inexpensive measures has been perverted into a highly subjective and technical process, which can only be decided by a court after an intrusive compelled inquiry into a business or property owner’s financial pain threshold for implementing any of the hundreds of accessibility code requirements applicable to new construction .

The law’s drafters didn’t anticipate that this access barrier removal nudge, would become more onerous and litigated than the intended target of the law – new construction. This circumstance is the result of the subjective and vague nature of this standard combining with pre-existing state monetary awards to plaintiffs, originally intended only for extreme acs of intentional discrimination.

By itself, the ADA – a federal law – only provides injunctive relief to plaintiffs, i.e., court orders to improve access. In contrast, California state law, provides monetary awards to plaintiffs but was originally enacted only to apply to new construction (i.e., there was no requirement to make modifications after construction) or to extreme acts of intentional discrimination. However, in combination, the ADA and state laws have been interpreted to provide the maximum relief of both sets of laws, i.e., monetary damage awards and continuous access modifications with no clear standard of compliance.

A prophetic exchange between Senator Tom Harkin, the law’s principal author, and Senator Dale Bumpers, who was worried about the ADA’s unintended consequences, was summarized in the dissenting opinion in the case of Steger v. Franco, 228 F.3d 889 (8th Cir.2000):

Senator Dale Bumpers observed that the term “readily achievable” is an unknown term of art and would therefore prove to be “like the term beauty.   Beauty is in the eye of the beholder and readily achievable means [w]hat some judge says it means?”  Id. at S10760-61.   Responding to these concerns, Senator Tom Harkin, the ADA’s chief Senate sponsor, predicted:

MR. HARKIN.   I think the instances in which, practically speaking, instances in which cases could be brought for injunctive relief would be very few and will involve egregious cases of multiple types of discrimination, probably against more than one person with a disability.
Suppose an individual with a disability goes into a place of public accommodation and is told he cannot come in or something, is that person going to go to court and get an injunction?   No, they will just go someplace else.   They will say, “Heck, we will not go back to that place of business again.”
[citation omitted] If the court’s extraordinary disregard of traditional standing limitations becomes the judicial norm, the benign prediction of Senator Harkin will prove untrue, and the worst fears of Senator Bumpers will be realized.   Lawyers and architectural experts will bring countless abstract disputes to federal court, and federal judges across the country will sit as all-powerful ADA building inspectors, dictating what structural renovations are “readily achievable” in particular buildings.

At this point, it can hardly be argued that Sen. Bumpers was incorrect. In California, this access litigation explosion is further fueled by the state law’s mandatory monetary damage awards combined with the federal law’s vague and subjective standard. This combination has created a perfect dreadful storm for business and property owners in which every old building is vulnerable to an access lawsuit unless it is 100% compliant with new construction access standards, which is clearly contrary to the intent of the law.

However, even with respect to buildings constructed after the enactment of the ADA, this myth is inaccurate. As a building code, ADA construction standards are part of the construction plans which must be submitted to local government building departments for approval, and inspected during construction. Lawsuits brought against such buildings typically allege minor discrepancies that have occurred during the use of the building or upon conflicts and ambiguities within disabled access laws. Examples of such discrepancies or ambiguities include bathroom mirrors that have been hung a few inches too high, door pressure poundage that has increased during usage, or conflicting provisions about the color of parking signage or ambiguities over whether toilet paper dispensers must be recessed into the wall.

In either the case of pre or post 1992 construction, it is rare that a defendant in these lawsuits has simply ignored the law. Rather, the implementation of the law has morphed into something far different than the drafters intended: An instrument by which plaintiffs can pressure defendants into paying monetary settlements because proving compliance with the law requires an expensive trial.