Slaying the ADA Litigation Monster?

Date: June 27, 2017

Attorney Mark Pulliam, an expert on the Americans with Disabilities Act, recently wrote a thorough and thought-provoking exposé on how the ADA has spawned a flood of (mostly frivolous) lawsuits across the country over the past 27 years. ADA abuse is a major concern for the small business community, and an issue that we hear about frequently at the NFIB Small Business Legal Center. This is why we’ve put together resources to help small business owners understand their obligations under the ADA—including both in the employment context, and in terms of design standards for places of public accommodation (i.e., businesses that invite the public in their doors).

But for anyone wishing to get a better understanding of the issues facing small business owners under the ADA, it’s worth reading Pulliam’s article: “The ADA Litigation Monster.” Notably, this piece cites NFIB’s California State Director, Tom Scott, who “estimates that pre-litigation threats result in several times as many settlements as those resulting from filed lawsuits.” This is a significant point because there is rarely any sort of public paper trail for cases settled before a lawsuit is filed—which means it’s impossible to fully calculate the true economic costs of litigation (and or the threat of lawsuits) under the ADA.
Here are a few other telling points raised by Pulliam:

• “ADA claims against employers filed with the Equal Employment Opportunity Commission (EEOC), now numbering more than 26,000 per year, have become as common as sex-discrimination claims. And the volume keeps rising, as does the number of ADA lawsuits against employers filed in federal court yearly.”
• “Under Title I, employers must ignore the economic burdens imposed by disability accommodations unless they constitute an “undue hardship,” an amorphous standard that most medium-size to large firms will rarely be able to satisfy.”
• “The ‘accessibility’ provisions of ADA’s Title III encourage even greater abuse than does Title I.
• “The technical requirements for Title III, set forth in voluminous federal regulations, resemble a labyrinthine building code, specifying in overwhelming detail every aspect of how facilities and infrastructure must conform: the size and location of handicapped parking spaces, width of doorways, placement of elevator buttons, height of paper-towel dispensers and mirrors, layout of restrooms, and so on.”

These are important points—especially for the small business community. Indeed, NFIB has sought to shine on these issues for years. But after nearly a 30-year reign of legal terror, the question is: can politicians come together for ADA reform?

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