ADA Lawsuits: Should Society Be Worried About Serial Litigants, or Serial Violators of the ADA

By |2018-07-16T11:11:36+00:00June 16th, 2018|
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ADA LawsuitsIn March, the Pittsburgh Post-Gazette reported on a lawsuit filed against the University of Pittsburgh Medical Center, the largest nongovernmental employer in Pennsylvania, alleging violations of the Americans with Disabilities Act. The lawsuit was filed on behalf of Josie Badger, a wheelchair user with a doctorate in healthcare ethics, who alleges that parking lot slopes, lack of appropriate signage and steep curb cuts, among other violations, have limited her ability to fully and equally access many of UPMC’s locations.

The Post-Gazette’s article shares a tone with many stories on ADA lawsuits from around the country, and is illustrative of the way that the mainstream press often portrays these lawsuits and those who file them. “UPMC has become the latest target of a disability-rights activist who has retained a Pittsburgh-based law firm to sue nearly two dozen corporations in federal court in recent years over alleged violations of the Americans with Disabilities Act,” reads the lead sentence of the article.

The article immediately frames UPMC as the victim in this story with the use of the word “target.” The yet unnamed disability-rights activist, with her dozens of similar lawsuits, is thus cast as a pesky interloper, clogging the legal system with the minutiae of parking lot angles and ramp measurements. It’s as if, regardless of what the law — now nearly three decades old — actually requires, a minimal effort at access is all businesses should reasonably be expected to provide.

From the Lowell Sun to 60 Minutes on CBS, this same type of coverage surrounding ADA lawsuits is prevalent. There is often an attempt to show balanced reporting, but the overall tone tilts to the side of business. Take the case of the Lowell Sun, of Lowell, Massachusetts, which reported in April on Dino Theodore, a man who, like Badger, was suing his local hospital for ADA violations, and had already sued many of his region’s businesses for similar violations. The Sun paints the sheer number of lawsuits as a problem with the individual and his attorney:

“The hospital is just one in a long list of companies in Massachusetts and New Hampshire — there have been more than 50 over the past decade — that Theodore and [lawyer Nicholas] Guerrera have sued in federal court over their compliance with the landmark disability rights law.

“The work has earned them a reputation as shysters among some of those on the other end of their lawsuits.”

Usually when a news publication wants to make a point, it will use a quote to let a member of the public make it for them. But the Lowell Sun doesn’t even bother with that. If whoever called Theodore such a loaded term as shyster didn’t want to be quoted, why would a reporter feel it necessary to insert it into the article?

The article actually goes on to present a decent overview of the disability rights movement, but language matters, and the language used from the beginning of the article makes a clear point: ADA lawsuits are a problem, one that isn’t the fault of the business.

No effort is made to frame the sheer size of the access issue, or to ask a simple and valid question: What percentage of businesses are still in violation of the ADA? As wheelchair users across the U.S. know, the numbers aren’t good. Even looking just at doctor’s offices, a 2013 study by Tara Lagu, Ph.D., a researcher at the University of Massachusetts who has written extensively on public health, found that nearly a quarter (22 percent) of subspecialists reported that they would be unable to accommodate a specific patient with a mobility impairment. That’s a rather shocking number, one that deserves to be mentioned when framing the story of specific lawsuits, but rarely is. Given that they’re in the same state, perhaps the Lowell Sun should have contacted Lagu to get some much-needed context for its story.

If it feels like we are picking on the Lowell Sun and the Pittsburgh Post-Gazette, we are. But unfortunately, this kind of myopic reporting is all too ordinary. There’s no mainstream media coverage of the systematic inaccessibility of our healthcare system, and too few articles about the cute local bistro or hair salon that has two steps to enter and whose owners offer casual indifference when asked if there’s an access ramp.

Instead we get articles about the local wheelchair user who’s brought dozens of lawsuits on unsuspecting businesses. If wheelchair users alone were to bring a lawsuit every time they encountered an ADA violation that substantially limited their access to a business or other public accommodation, our courts would be backlogged into the next decade.

The 800-pound Gorilla

The hulking backdrop to all of this is H.R. 620, a piece of legislation that Republicans in the U.S. Congress have been trying to pass for years, and finally jammed through the House of Representatives in February. The bill was sold by its backers as an attempt to stop so-called “drive-by lawsuits,” in which an attorney and plaintiff sue large numbers of businesses for ADA violations. The law would allow businesses up to four months to start making “substantial progress” toward removing barriers before they could be sued.

H.R. 620 was no doubt helped along by Anderson Cooper’s 60 Minutes report on drive-by lawsuits, a veritable parable of the ignorance of nondisabled society to the needs of those with disabilities. It places the ADA — with its “275-page manual that details everything from the exact height of a mirror in a bathroom, to the maximum thickness of carpeting, to the angle at which water can come out of a drinking fountain” — squarely in the frame of bureaucracy and regulation gone amok.

Perhaps along with these examples, it would be relevant to share how carpet thickness may have a large effect on a wheelchair user’s ability to get from point A to B or, when you think about it, what exactly is the point of a mirror if you can’t see yourself in it?

In one segment of the 60 Minutes piece, the audience is made to feel for a hotel owner who “says he didn’t know he was required to install” a pool lift, and after being sued by a serial litigant, we are told that he ended up “paying $3,000 to buy a lift, that so far, no one has ever used. He also spent thousands of dollars in attorney’s fees.”

The report makes no mention of the size of the manuals for building code and worker safety regulations and what seemingly trivial things they might cover. Businesses accept these regulations because they know they have to comply. Multimillion dollar settlements could potentially await those who decide to flout worker safety rules or modify buildings so that they no longer meet code. But if a business restripes its parking lot to remove or lessen accessible spaces, or never bothers to install a pool lift, the only punishment it typically faces is having to provide the access the law already demands. At worst, it may have to pay opposing attorney’s fees and nominal, state-restricted settlements, as in the case of the noncompliant hotel owner.

To cast that same owner, or any other business owner as the victim, is both reflective of, and helping to fuel, a larger attitude in which providing meaningful access for people with disabilities is seen as more trouble — and expense — than it’s worth. H.R. 620 is that attitude codified at one of the highest levels of government. Regardless of whether a companion bill ever makes it past the Senate and into law, it represents a troubling window into how a powerful segment of our society views the framework that supports the civil rights of the disability community.

Resources
• “UPMC becomes latest target of disability-rights activist suing over alleged ADA lapses,” www.post-gazette.com
• “From a wheelchair, Lowell man’s a force for accessibility,” www.lowellsun.com
• “What’s a ‘Drive-By Lawsuit’?” www.cbsnews.com/news/60-minutes-americans-with-disabilities-act-lawsuits-anderson-cooper
• “Access to subspecialty care for patients with mobility impairment: a survey,” www.ncbi.nlm.nih.gov