The Americans with Disabilities Act Gone Wild

I have a very close friend that has suffered from multiple sclerosis for the past 23-years. Spending time with her, I have become acutely aware of the obstacles that the disabled encounter daily just trying to navigate through the grocery store or accomplish everyday tasks. The Americans with Disabilities Act was enacted with the noble purpose of making public life accessible to persons with disabilities (when it’s reasonable to do so) in areas including employment, schools, transportation and all public and private places that are open to the public. This was groundbreaking legislation with the goal of integrating those with disabilities fully into public life. Whenever you see a blue parking space with a wheelchair, a ramp to enter a business or a person with a disability performing a job with an accommodation – this is the noble intent of the Americans with Disabilities Act at work.

Recently, however, the Americans with Disabilities Act has been abused by a few lawyers that have made national headlines. Recently, a U.S. Magistrate Judge in New Mexico recommended dismissal of identical lawsuits against 99-small businesses in Albuquerque brought under the Americans with Disabilities Act. The judge described the lawsuits as a “carnival shell game” noting the lawsuits were identical, the plaintiff had never visited several of the businesses and there was never an attempt to notify the small business owners of the violations prior to filing the lawsuits. The court noted the lawsuits undermined the spirit and purpose of the Americans with Disabilities Act.

There are certainly legitimate and meritorious cases when a lawsuit needs to be filed to force compliance with the Americans with Disabilities Act. I’ve defended Americans with Disabilities Act cases where there is a legitimate dispute. I’ve also been involved in cases where a business has refused to comply. The Americans with Disabilities Act encourages (but does not require) an attempt to resolve an ADA claim before filing a lawsuit. My experience is that most small businesses, when made aware of their failure to comply with the Americans with Disabilities Act, usually will promptly comply. I think the spirit and intent of the Americans with Disabilities Act demands nothing less. My friend with multiple sclerosis, and the millions of other disabled Americans like her, are certainly better served when reasonable notice of non-compliance is provided so small businesses can make the required changes as opposed to serial “gotcha” litigation.