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 2007.

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 Institute report, trial lawyers “have found ways to exploit legal rules in disability statutes to their personal benefit, fleecing taxpayers and business owners alike in the process.”

“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.”

Darren 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.

“Although 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 applauded.”

McKinney 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 problem.

“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 disabled.”

“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.

But such 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.

“The demand 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.

‘All businesses 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,” he said.

 




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