“Drive-by Lawsuits” Under the Americans with Disabilities Act

“Drive-by Lawsuits” U…

The Americans with Disabilities Act (ADA) became law in 1990 and prohibits discrimination on the basis of disability in employment, state and local government, public accommodations, commercial facilities, transportation, and telecommunication.

The ADA protects individuals who themselves have disabilities or those who have a relationship or association with an individual with a disability. As defined by the ADA, an individual with a disability is someone with a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived as having an impairment by others.

The ADA guarantee of public access for all Americans has been profoundly positive for impaired individuals. While many lawsuits filed under the ADA are legitimate, there have been an increasing number of so-called “drive-by” lawsuits filed under the ADA by scheming plaintiffs and their attorneys. These lawsuits frequently involve the same plaintiffs who have sued numerous places of public accommodation for technical ADA violations. Some of these plaintiffs have filed hundreds or even thousands of disability lawsuits.

These cases have been dubbed “drive-by” lawsuits because the plaintiffs usually only pass by the business, take a cursory measurement of some sort of purported ADA violation, and then file suit. Sometimes plaintiffs are even collecting evidence of alleged violations without even stepping foot on a business’s property, using tools like Google Maps Street View and other online mapping services.

The types of the lawsuits filed under the ADA vary, but the violations alleged can be something as minor as a sign being slightly askew from its required location or a handicap parking spot being a few inches too narrow. A lot of times, plaintiffs are suing businesses under the guise of an ADA violation when they have never stepped foot on the business’s property and have no intention of doing so in the future. This is not the true intent of the ADA.

These “drive-by” lawsuits take up a lot of time and money for business owners. While the ADA does not allow the plaintiff to recover monetary damages, a losing defendant may be required to pay the plaintiff’s attorney’s fees.

The courts have taken notice of these sometimes-frivolous lawsuits. A plaintiff must still have legal standing to file a lawsuit against a business under the ADA, meaning they must genuinely expect to return to the place where they allegedly experienced discrimination. A federal judge in California recently ordered disabled plaintiffs and their lawyers to prove under penalty of perjury that they actually suffered from discrimination at the businesses they were suing and legitimately intended to return to the places they had claimed were inaccessible.

There have also been substantial federal and state efforts to protect business owners from “drive-by” lawsuits filed under the ADA, including proposed legislation that would require potential plaintiffs to first give notice of any ADA defect to a business owner and a period of time within which the business would then be able to fix and address the issue. If passed, this sort of legislation will be hugely impactful as most businesses sued in “drive-by” lawsuits have no idea they even had an ADA defect until after a lawsuit has been filed.

The IRS also offers a tax credit to assist businesses with complying with the ADA. The credit is available to businesses that have less than a million dollars in revenue in the previous tax year and fewer than thirty employees.

While some plaintiffs have tried to take advantage of the ability to sue under the ADA without having suffered from discrimination, that does not discount the importance of the ADA and all of the immense protections it affords to the public. The ADA ensures that individuals with disabilities have the same opportunities as everyone else.

Businesses and other places of public accommodation should familiarize themselves with the ADA’s requirements to make sure they are ADA compliant. Technical assistance materials can be found on the ADA’s website. The attorneys here at Setliff Law are also able to advise about the ADA’s requirements in general or to assist with your case if you have been sued under the ADA. If you have any questions about this article, please contact Shannon Kohler (skohler@setlifflaw.com) at 804-377-1268 or Steve Setliff (ssetliff@setlifflaw.com) at 804-377-1261.