WASHINGTON, D.C. -- The
House Judiciary Committee’s Subcommittee on Constitution and Civil Justice will
be holding a hearing today on the ACCESS (ADA Compliance for Customer Entry to
Stores and Services) Act, which aims to protect small businesses from the
widespread abuse of the Americans with Disabilities Act (ADA).
Congressman Ken Calvert
(R-CA), who is sponsoring the bill, will testify before the committee in support
of the bill he says will help prevent plaintiffs’ lawyers from “trying to
enrich themselves on the backs of the disabled.”
The ACCESS Act, also
known as H.R 241, would require an aggrieved person to notify a business of an
ADA violation in writing, and give the business owner 60 days to provide the
aggrieved individual a detailed description of improvements to remedy the
violation. Then, the owner would have 120 days to remove the infraction.
Failure to meet these conditions would be grounds to further the lawsuit.
Calvert told the West Virginia Record that as a property
owner himself, he has had to deal with complaints from people who find minor
discrepancy in a building or in following the regulations, and instead of being
given time to correct the infraction, owners get slapped with lawsuits and
“lawyers get rich.”
“We all want to
have access (for) the disabled, we just don’t want to make this an excuse for
lawyers to sue small business owners,” he said. “Nobody is objecting to making
sure that we have access for the disabled.”
Calvert said some of the
infractions are very minor, like not having a sign in the right location or
neglecting to paint a line in the right way.
Instead of rushing to
file lawsuits, Calvert said business owners should be given an opportunity to
fix infractions and comply with the law.
West Virginia has seen a wave of ADA lawsuits against large corporations
within the last few years.
Earlier this year, an unnamed
man brought a suit against Mylan
Pharmaceuticals, claiming the company violated the ADA when it placed him on
involuntary leave after his neurologist placed him on specific restrictions
following a seizure in March. According to the complaint, Mylan had previously
accommodated the plaintiff’s condition since the beginning of his employment in
Towards the tail
of last year, the West Virginia Human Rights Commission found that despite
having their own private bathrooms, CAMC-Teays Valley Hospital’s patient bathrooms
were not ADA compliant.
And in Charleston in April 2015, Duane J. Ruggier II, an attorney, sued Go-Mart
for allegedly failing to maintain its restroom
stall in compliance with the West Virginia Human Rights Act and the ADA,
according to the Complaint.
Ruggier has multiple sclerosis, which substantially limits his mobility and
requires him to use a power wheelchair when traveling in public.
Although there are many legitimate cases of ADA violations, the growing
number of frivolous lawsuits intended to make money instead of correcting ADA
infractions is of particular concern to many.
According to a 2014 Manhattan
trial lawyers “have found ways to exploit legal rules in disability statutes to
their personal benefit, fleecing taxpayers and business owners alike in the
“Yearly ADA-related payouts paid
through employment-discrimination claims filed with the federal Equal Employment
Opportunities Commission (EEOC) exceed $100 million and have grown at an
annualized rate of more than 12 percent over the last seven years, a period
when overall tort-litigation costs in the U.S. have fallen,” the report stated.
“These payouts, moreover, understate the true cost of such litigation, which
almost always settles, given that the expected expense of defending against an
ADA lawsuit to the employer tops $250,000.”
McKinney, director of communications for the American Tort Reform Association,
told the West Virginia Record that
the association is in full support of the bill.
realistically, being an election year and with the stranglehold that the trial
bar has on senate Democrats generally, one can’t be particularly optimistic
about the bill. But certainly it is needed; the congressman is to be
said small businesses around the country are supportive of the bill because ADA
lawsuits “are spreading like kudzu all around the country now.”
Calvert said the issue
is not a Republican or Democrat issue, but just a common sense solution to a
“This is supposed to
help people that are disabled, not help some attorney get his kids through
college,” he said
But he’s expecting
resistance from those “trying to enrich themselves on the backs of the
“I don’t think those
guys really give a hoot about the disabled, they care about their own bank
accounts,” he said.
Calvert has never had a
complaint from disabled groups about being given a chance to fix infractions.
In fact, people with disabilities want to get the problem fixed to make sure
they get access, he said.
“This is the kind of
thing that is common sense stuff, and I think we need to get this passed as
soon as possible, he said.
complaints aren’t limited to how ADA compliant a business’ physical location is.
“An example of
the proliferation of ADA lawsuits are the hundreds of businesses around the
country receiving letters threatening lawsuits for allegedly ADA non-compliant
websites,” Timothy M. Miller, an attorney at Babst Calland, told the West Virginia Record. “This is occurring
even where there has been no identified ‘customer’ harmed or denied access.”
Miller said the law is not clear on whether
the ADA even requires websites to be “accessible” and ADA compliant – a topic
that has sparked a lot of debate in the legal sphere.
letters are being sent by a few technology savvy law firms and demand payment
of money and modifications to websites to avoid a suit. Businesses must decide whether to spend the
money to defend a lawsuit in an area where the law is uncertain, or pay off the
demand and modify their websites.”
It is a classic
“sue and settle” business model, Miller said.
should be forewarned to conduct a self-audit or have your website vendor verify
compliance with the industry technical standards, Version 2.0 of the Web
Content Accessibility Guidelines, published by the World Wide Web Consortium,”