awda lawsuits C D A J O U R N A L , V O L 4 9 , Nº 2
Discrimination Claims: Avoiding ‘Drive-By’ and ‘Click-By’ Lawsuits Mark Gibson, LLB
abstract As well-intentioned as the Americans with Disabilities Act was, it has been and will continue to be abused for financial gain by predatory plaintiffs and attorneys.
AUTHOR Mark Gibson, LLB, a native of the U.K., had a private practice in England before moving to California in 2000. His practice is focused almost exclusively on the area of professional liability, defending health care providers in state and federal courts in actions for malpractice, civil rights actions under the Americans with Disabilities Act and actions before the state licensing boards. Conflict of Interest Disclosure: None reported.
T
he Americans with Disabilities Act1 (AwDA) became law in 1990. The stated aim of the AwDA was certainly a noble one: to address discrimination against disabled persons to ensure equal rights for disabled persons and opportunities to participate in public life. It addressed discrimination in several contexts including employment and participation in state and local government programs and services. Title III2 of the act sought to improve access to goods and services, including those offered at dental offices. At the time the AwDA was signed into law by President George H. W. Bush, critics voiced concern that it would lead to an “explosion” of litigation. President Bush dismissed that concern, insisting that it would instead provide clear guidance to the business community. Over the last 30 years, the AwDA has to a large degree been successful in achieving its goal and has undoubtedly improved the lives of persons with disabilities by increasing access. But,
unfortunately, those critics who anticipated an “explosion” of litigation have been proven correct, nowhere more so than in California, where we now have dentists and other small-business owners routinely targeted by “professional” AwDA plaintiffs filing lawsuits based upon manufactured grounds. This article explains what Title III of the AwDA is and how it applies to the dental office; describes how the AwDA has been abused leading to the phenomenon of manufactured “driveby” lawsuits by professional plaintiffs; identifies the tactics used by professional plaintiffs and the reasons why those tactics are so effective; explores some of the myths and misconceptions surrounding AwDA lawsuits; and lists some steps that can be taken to reduce the risk of being targeted by these professional plaintiffs.
Title III of the AwDA
Title III of the AwDA applies to any business that provides goods or services to the public, such as stores, restaurants, FEBRUARY 2 0 2 1
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