24 minute read
Discrimination Claims: Avoiding ‘Drive-By’ and ‘Click-By’ Lawsuits
Mark Gibson, LLB
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.
Advertisement
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.
The Americans with Disabilities Act [1] (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 III [2] 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, theaters, shopping malls and doctors’ and dentists’ offices. A business covered by Title III of the AwDA is required to take steps to comply in several ways.
First, it must modify its policies and procedures when necessary to provide access to customers with disabilities. [3] An example of modifying a policy or procedure would be allowing a disabled patient to be accompanied by a service animal notwithstanding a “no pets” policy.
Second, the business must take steps to communicate effectively with disabled customers. [4] The method of providing effective communication will depend upon the nature of the communication as well as the nature of the disability and will vary with the complexity of the information exchanged. For instance, effective communication with a deaf patient might require only the provision of written materials when conveying a limited amount of basic information. But if one were engaging in an informed consent discussion with that same patient prior to oral surgery, then a sign language interpreter may have to be provided in order to communicate effectively. Last, Title III requires that the business remove architectural barriers in existing buildings [5] and that newly built or altered facilities be constructed so as to be accessible to individuals with disabilities. [6] Architectural barriers are those parts of the built environment in and around the business that limit or prevent access to the goods or services offered. Examples of exterior barriers commonly seen include parking stalls with no access aisle to allow deployment of a van’s wheelchair lift or the lack of ramping to provide an accessible route otherwise blocked by one or two steps.
Common examples of interior barriers include doorways that are too narrow for a wheelchair to pass through (minimum 32 inches required) or restrooms that lack adequate wheelchair turning space or grab bars and accessible dispensers. The existence of one or more of these barriers to access can give rise to an AwDA lawsuit.
The Explosion of Title III Litigation in California
Title III of the AwDA has spawned a cottage industry, with increasingly large numbers of lawsuits filed each year ( FIGURE 1). [7]
This has been particularly true in California where the legal landscape has allowed and perhaps even encouraged a volume of lawsuits not seen elsewhere. Indeed, approximately 40% of all AwDA cases nationwide are filed in California (FIGURE 2). [8]
Of those, a majority were filed by just a handful of law firms. The business model often employed by these attorneys is to target the smallbusiness owner, against whom the cost of litigation can be more easily leveraged to coerce an early settlement, and then to quickly move on to the next case.
The ease with which an AwDA lawsuit can be filed (there is no screening process) and then leveraged to force a settlement has given rise to a phenomenon referred to as a “drive-by” lawsuit where the plaintiff does not even enter the business to attempt to make a purchase of goods or services, but merely drives by, identifies an alleged exterior violation (such as the absence of an access aisle or ramp) and then sues the business without giving prior notice. [9]
This low-cost, highly profitable, fast-turnover model used by plaintiffs’ attorneys has been made possible by virtue of the following facts.
AwDA Lawsuits Are Lucrative and Low Risk
Perhaps the two most important factors behind the explosion of Title III lawsuits are that they are extremely lucrative for plaintiffs’ attorneys and very low risk. When the legislature enacted the AwDA, it provided for enforcement by the Department of Justice (DOJ). But, realizing that limited DOJ resources would be inadequate to enable the type of enforcement necessary for widespread change, it also allowed private enforcement by any individual impacted by a lack of access. Understanding that attorneys would not litigate such cases unless there was financial incentive to do so, the legislature also provided that the prevailing party would recover its legal fees. The result is a situation in which many AwDA lawsuits are used not to improve access for the disabled, but purely as a way of generating huge fees. Indeed, in the author’s experience, many cases that resolve do so by way of a monetary settlement only and do not involve architectural changes.
One would have hoped that the same fee recovery provision would have also discouraged the filing of frivolous lawsuits. After all, no reasonable plaintiff would expose themselves to the risk of having to pay the defendant’s legal fees by filing a lawsuit the plaintiff was likely to lose. The practical reality, however, is that even after filing a seemingly frivolous lawsuit, the plaintiff assumes almost no risk of being ordered to pay the defendant’s fees. While defendants do of course prevail, they will not be awarded their attorneys’ fees unless they can prove that the plaintiff’s lawsuit was filed purely to harass or embarrass them, [10] an almost impossible standard to meet.
This lack of consistency in how the fee recovery rule is applied gives plaintiffs the upper hand in any Title III case because they have nothing to lose and everything to gain, while defendants have nothing to gain and everything to lose.
Absolute Compliance With the AwDA Regulations Is Difficult
Another issue for the business owner is that maintaining full compliance with the AwDA can be quite challenging. While the AwDA promised that it would make it easy for businesses to comply by providing clear guidance, that promise has not been fulfilled. The problem has not been the lack of access regulations, but more so the fact that the regulations have become overwhelming in their expanse and level of detail. Indeed, the current regulations are contained in a 279-page manual [11] containing thousands of requirements spanning from the appropriate thickness of carpeting, [12] the maximum force required to open a door, [13] the height of a restroom mirror, [14] the dimensions and location of restroom grab bars [15] and so on.
A minor violation of any one of the thousands of requirements can give rise to liability, no matter how seemingly insignificant. For instance, liability might be established by showing that a restroom mirror or paper towel dispenser was placed slightly higher than allowed or that an accessible parking space lacked the requisite signage.
With many businesses likely having at least one minor technical access violation, it can therefore be relatively easy for professional plaintiffs to find businesses to sue.
The AwDA Use of Nebulous Criteria Has Been Unhelpful to Businesses
Compounding the difficulty is the AwDA’s use of nebulous terms to describe a business owner’s obligations. For instance, the AwDA dictates that a business owner must do what is “readily achievable” in terms of removing barriers to access, a phrase which means “easily accomplishable without much difficulty or expense.” [16] But difficulty and expense are relative and highly subjective terms. They can be (and are) interpreted by different people (as well as by jurors) to mean different things. If making a restroom accessible would involve knocking down a wall and moving fixtures at a cost of $7,500, is it “readily achievable?” Certainly, the nature and cost of the work would suggest otherwise. But those are only two of several factors to be considered in making the determination. Other factors include the “overall financial resources,” “number of persons employed” by and “the effect on expenses and resources” of the business as well as of any parent corporation or entity. In addition, “safety requirements that are necessary for safe operation” and other unspecified impacts upon operations should be considered. [17] Naturally, the larger the business, the more likely such construction would be considered “readily achievable,” but in the absence of any bright-line guidance, there will always be potential for differing interpretations. This means that plaintiffs’ attorneys can and will argue that virtually all barrier removal is readily achievable and there is always potential for a jury to accept that argument.
Liability Under the AwDA Is Strict
Not only can liability under Title III be shown by identifying any one of thousands of construction variances, it also does not require the plaintiff to prove any level of culpability on the part of the business. Proving liability can be based upon a single, very minor technical violation of the regulations, such as an otherwise accessible parking stall being a few inches too narrow, an incorrect style of door hardware or a restroom mirror placed at the wrong height. There is no requirement that a plaintiff must show that a defendant intended to discriminate or even that the defendant was aware of the existence of a barrier to access. Liability is strict, and being a good person, providing exceptional care for patients and acting in good faith is never a defense.
Plaintiffs in California Are Entitled to Damages Even When No Injury Is Alleged
While the federal AwDA law does not provide for a plaintiff to recover damages, related California law does. [18] In fact, a successful plaintiff in California will be awarded damages whether or not injury is alleged and regardless of whether the plaintiff was prevented from accessing the business. To recover damages, merely alleging “difficulty, discomfort or embarrassment” is sufficient. [19]
While some states have enacted similar legislation, none are as generous as California’s laws, which provide for a minimum award of $4,000 per visit. [20] Needless to say, this has encouraged the filing of AwDA lawsuits by those persons who may see the law as a quick and easy way to make money. Indeed, it has contributed to the rise of the “professional” plaintiff in California who, with a sufficient volume of lawsuits, can easily generate a six-figure annual income. Some of the more well-known professional plaintiffs have filed thousands of AwDA lawsuits over the years. [21]
No Prelawsuit Notice Is Required
Many business owners would argue that if they were aware of a potential AwDA violation, they would gladly fix it, not only to avoid being sued, but also to improve customer service. It is unfortunate then that the law does not require plaintiffs to warn business owners or provide them with an opportunity to correct alleged violations before filing a lawsuit. Nor is there much incentive for plaintiffs’ attorneys to provide a notice of intention to sue because allowing the business owner to fix the barrier would deprive them of the chance to generate those huge fees.
Business Owners Often Settle Lawsuits as a Matter of Economic Expediency
While plaintiffs and their attorneys are incentivized to file AwDA lawsuits, defendants are usually motivated to settle them as soon as possible. That is because unless an early dismissal can be secured (which is very rare), it will usually require going to trial to secure a favorable result,
which can cost a minimum of $50,000 in legal defense fees, expert witness fees and court costs. As discussed, the defendant has no realistic prospect of recovering those costs from the plaintiff. Therefore, even when the defendant prevails, it will almost certainly be a pyrrhic victory. With nothing to be gained from standing on principle and going to trial, the financial realities of AwDA litigation often will dictate that even a nonmeritorious case be settled at an early juncture in order to minimize defense costs.
Of course, if the plaintiff’s case has merit, then the defendant also assumes the risk of losing at trial, in which event the defendant will pay the prevailing plaintiff’s fees and costs — which will run into the tens of thousands of dollars.
Misconceptions Surrounding AwDA Lawsuits
Despite the ever-increasing threat of AwDA lawsuits as well as the uneven playing field heavily favoring plaintiffs, it is still common for business owners to feel that they have no potential liability or are somehow insulated from being sued. Some of the commonly held, but incorrect, beliefs include the following examples.
As a Tenant, Not an Owner, I Have No Responsibility for Barriers to Access
The AwDA is a civil rights law, not a building code law. It expressly applies to the owners, the tenants and anyone operating the business, [22] making all equally responsible for any barriers to access.
It is also very important to note that many leases include provisions shifting all financial responsibility for AwDA liability to the tenant. Therefore, the reality is that the tenant often faces greater exposure to AwDA liability than does the owner.
My Building Is Old, Therefore It Is “Grandfathered” Into the Pre-AwDA Law
While “grandfather” provisions are often found in local building codes, they are not included in the AwDA and do not provide a defense to an AwDA lawsuit. All dental offices are subject to the requirements of the AwDA regardless of when those offices were constructed.
The myth of an AwDA grandfather provision often arises because the nature and extent of obligations under the AwDA can vary according to the date of construction, and it is true that older buildings do not necessarily have to provide the same level of access that a new building does.
However, buildings of all ages are subject to the ongoing AwDA obligation to remove barriers to access if doing so is readily achievable. [23] This means that relatively easy and inexpensive fixes, such as creating accessible parking spaces, ramping one or two steps, widening doorways, installing restroom grab bars and repositioning restroom dispensers are required regardless of the age of the dental office. [24]
Moreover, regardless of the date of construction, if alterations [25] have taken place, then the area altered must be made accessible. If the alteration was to an area of primary function, such as the reception area or exam room, then not only the area renovated but the path of travel to it and any sanitary facility supporting it must also be made accessible. [26]
When My Office Was Built or Altered Recently, City Permits Were Issued Which Guarantee That It Complies With the AwDA
Building officials provide approval only for local and state requirements — not federal requirements such as the AwDA. [27] They are not authorized nor responsible for enforcement of federal access requirements. [28] Therefore, a building permit does not guarantee compliance with the AwDA.
I Don’t Need To Fix the Building Because My Staff and I Always Help Our Disabled Patients Get Around Any Barriers to Access
Assisting a patient (e.g., by carrying or lifting) rather than removing a barrier to access does not comply with the AwDA or state law. Moreover, doing so can expose the dentist to other claims, such as a worker’s compensation claim if an employee is injured while providing physical assistance to a patient or to a personal injury claim if the patient is injured while being helped.
The New AwDA Frontier: “Click-By” Lawsuits
While thousands of AwDA lawsuits regarding physical barriers to access have been filed every year for many years now, a new wave of AwDA litigation is beginning to take off. This new frontier relates to e-commerce, with the same tried-and-true tactics being used to target commercial (including dental) websites for not being fully accessible to those with hearing, vision or learning impairments.
While the AwDA does not mention website accessibility, recent court decisions have made it clear that the AwDA requirement for equal access also applies to websites, provided there is a connection between the website and the brick-andmortar business. [29] Typical allegations are that video content is not closedcaptioned for the hearing impaired or that text content is not compatible with a screen reader for the visually impaired.
As with physical barriers to access, website access violations are quite easy to find. Many websites are not fully compliant due to both a lack of awareness of the need to be compliant and a lack of guidance on the ways in which compliance is met. While the DOJ has issued regulations for physical access [30] (albeit complex regulations), it has so far refused to issue similar regulations to provide guidance on website accessibility. Instead, the courts generally look to a set of nongovernmental website accessibility guidelines as the standard. [31] Those guidelines are quite stringent, and this has made it easier for plaintiffs to argue noncompliance.
The number of websites that can be visited on a single day (hundreds — all from the comfort of one’s home) compared to the rather more time-consuming efforts required to visit commercial properties has also contributed to the rise in the number of website-access lawsuits filed.
COVID-19 has also accelerated this rise. Professional plaintiffs are having to switch targets due to travel restrictions and the temporary closures of many businesses preventing or limiting their ability to claim a denial of physical access.
As a result of these factors, it is anticipated that the frequency of website lawsuits may soon far outpace that of physical access lawsuits.
Strategies for Minimizing Exposure Consult With Knowledgeable Attorney and/or Expert
It is advisable to seek advice from an attorney who has experience in advising on AwDA obligations and minimizing potential exposure to AwDA lawsuits. This can be an extremely difficult subject to navigate, so choosing an attorney with the requisite knowledge and experience is critical.
An experienced attorney will also, when necessary, be able to help with retaining appropriate consultants. This will be either a certified access specialist (CASp) or architect to address physical access and/or a website designer to address e-commerce compliance. These experts can assist with determining the extent to which removal of physical or online barriers to access are required and formulate a plan for remediating any such barriers.
Prioritize Remediation of “Low-Hanging Fruit”
In determining how to prioritize removal of barriers, it is worth noting that the low-cost, high-turnover, high-profit business model of the unscrupulous plaintiff involves targeting the most easily identified barriers to access. It is for this reason that lack of properly configured and signed accessible parking is the most common allegation seen in AwDA lawsuits. If an accessible space is a few inches too narrow or if it lacks the appropriate signage or adjacent access aisle, it represents an invitation for a drive-by plaintiff to sue. On the other hand, if the drive-by plaintiff cannot readily identify an obvious target, they will typically move on. Therefore, the low-hanging fruit of nonaccessible parking should be addressed first.
Next, give priority to providing access to the building from the parking lot or sidewalk. This will be accomplished with curb cuts, an entrance ramp and widening the entrance if necessary.
Once inside, adequate space for a wheelchair to maneuver, minimum doorway width (32 inches) and an accessible (lowered) portion of the reception counter are all areas that are commonly litigated and which are usually deemed “readily achievable” to fix.
Restroom accessibility is another issue that is very frequently the subject of a lawsuit. To the extent that accessibility can be improved with grab bars and repositioning of mirrors and dispensers, this should be done immediately. If the restroom doorway is less than 32-inches wide, it should be widened if possible.
Other renovations involving significant construction or expense might not be required, and as discussed, this will be a relative question. However, the following examples of barrier removal illustrate the type of step that will usually be deemed “readily achievable” and therefore required: installing ramps; rearranging tables, chairs, display racks and other furniture; widening doors or installing offset hinges to widen doorways; installing accessible door hardware; installing grab bars in toilet stalls; rearranging toilet partitions to increase maneuvering space; insulating lavatory pipes under sinks to prevent burns; installing a raised toilet seat; installing a fulllength bathroom mirror; repositioning the paper towel dispenser in a bathroom; and removing high-pile, low-density carpeting. [32]
As for website compliance, generally speaking, the more content that appears on the website, the more likely it will be in violation. Again, there will be certain low-hanging fruit on a website that can be fixed relatively easily and inexpensively and, while doing so will not eliminate all risk of a lawsuit, it will greatly reduce exposure to the click-by lawsuit.
In this context, that means taking steps such as providing alternative text so that a text description is included for any images, providing closed captioning on video and ensuring that the website is easily navigable and fully usable with only a keyboard. This will typically involve editing the code and will require installation of software or employing a website developer who is familiar with the Web Content Accessibility Guidelines.
Business Considerations
In addition to the legal reasons to remediate barriers to access, consideration should also be given to the business reasons for doing so, including the following.
The Cost of Compliance vs. the Cost of Being Sued
It is important to note that regardless of whether the AwDA has been abused, it is the law, and the best strategy to avoid a lawsuit is to be compliant. While compliance can be expensive, many steps can be taken to improve access, many of which are far less costly than the legal fees that will be incurred in defending a lawsuit, even one without merit. One should also consider the loss of revenue that can result in a dental practice from being sued. Being involved in litigation can be time-consuming and distracting and much of what is required from the dentist in dealing with litigation cannot be delegated. There will be the inevitable voluminous discovery requests from the plaintiff’s attorney, the day-long deposition, the day spent in a court-ordered mediation or possibly an entire week out of the office spent sitting in a courtroom during the trial.
Can the Dental Office Afford Not To Comply With the AwDA?
Compliance with the AwDA just makes good business sense. There are 56.7 million people with disabilities in the U.S. (almost 20% of the population), which is “a significant market of consumers, representing more than $200 billion in discretionary spending.” [33] No business can afford to exclude 20% of its potential customers. Moreover, the typical dental office will already have a similar proportion of disabled patients. Improving their experience will have a positive impact on the relationships with those patients and will likely attract other potential disabled patients.
The Availability of Tax Break
To assist small businesses to comply with the AwDA, the Internal Revenue Service (IRS) code includes a disabledaccess credit of up to $5,125 for businesses with 30 or fewer full-time employees or with total revenues of $1 million or less in the previous tax year. [34] Eligible expenses may include the cost of undertaking barrier removal and alterations to improve accessibility, providing sign language interpreters or making material available in accessible formats such as Braille, audiotape or large print. 35 In addition, the IRS code provides a tax deduction of up to $15,000 per year for businesses of all sizes for costs incurred in removing architectural barriers in existing facilities or alterations. [36]
Insurance Coverage Issues
Last, an effort should be made to determine whether insurance is available for a potential AwDA claim. The business owner should check with their liability insurer(s) to see if coverage exists and, if so, the limits of coverage. While many insurance companies expressly exclude coverage for AwDA claims, some CDA members, for instance those insured with TDIC, may have coverage.
The type of available coverage may vary. It might extend only to coverage for legal defense costs. It might also include coverage for the legal fees recovered by the plaintiff and/or to the damages awarded to the plaintiff. In no event, however, will it extend to the cost of remedial construction to the business or its website. If the business is sued, the lawsuit must be reported to any liability insurers immediately. Any significant delay in reporting might be in breach of the policy and can result in denial of coverage.
Conclusion
While the AwDA is well-intentioned, it has been and will continue to be abused for financial gain by predatory plaintiffs and attorneys. With typical settlements of AwDA lawsuits ranging from $10,000 to $50,000, it would be prudent to assess one’s risk and take appropriate steps to minimize exposure. Consult with a knowledgeable attorney and an access consultant to help identify the steps that need to be taken to improve access and how best to prioritize those steps, thereby minimizing the risk of being the victim of a drive-by or click-by lawsuit.
REFERENCES
1. 42 U.S. Code sections 12101, et seq.
2. 42 U.S. Code sections 12181-12189.
3. 42 U.S. Code section 12182(b)(2)(ii).
4. 42 U.S. Code section 12182(b)(2)(iii).
5. 42 U.S. Code section 12182(b)(2)(iv).
6. 42 U.S. Code section 12183(a)(1), and (a)(2).
7. Graph provided by jdsupra.com.
8. Graph provided by jdsupra.com.
9. It has been speculated that some professional plaintiffs are even dispensing with the “drive-by” part of this routine by identifying alleged violations using technology such as Google Earth without even leaving home.
10. See, e.g., Mitchell v. City of Moore, Okla., 218 F.3d 1190, 1203 (10th Cir. 2000).
11. 2010 ADA Standards for Accessible Design, published by the Department of Justice.
12. ADA Access Regulation 4.5.3.
13. ADA Access Regulation 4.13.11.
14. ADA Access Regulation 4.19.6.
15. ADA Access Regulation 4.26.2.
16. 28 CFR section 36.304(a).
17. 28 CFR section 36.104.
18. Unruh Civil Rights Act (California Civil Code sections 51, et seq.) and California Disabled Persons Act (California Civil Code sections 54, et seq.).
19. California Civil Code section 55.56(c).
20. California Civil Code section 52(a).
21. For instance, as of June 2020, well-known Carmichael, Calif., based plaintiff Scott Johnson had filed 3,809 ADA cases in the Northern and Eastern California U.S. District Courts.
22. 42 U.S. Code section 12182(a).
23. 28 CFR section 36.304(a).
24. 28 CFR section 36.304(b).
25. “Alterations” include remodeling, renovation, rehabilitation, reconstruction, restoration, resurfacing of circulation paths or vehicular ways and changes or rearrangement of structural parts, elements or walls. Normal maintenance, reroofing, painting or wallpapering or changes to mechanical and electrical systems are not considered alterations unless they affect a facility’s usability. For example, a project limited to an HVAC system that includes the addition of thermostats would affect a facility’s usability because it involves elements (operable parts) covered by the standards. (United States Access Board Guide to the AwDA Standards, section 202.3.).
26. 42 U.S. Code section 12183(a)(2).
27. California Health and Safety Code section 19958.
28. Department of Justice Civil Rights Division Information and Technical Assistance on the Americans with Disabilities Act.
29. See, e.g., Thurston v. Midvale Corp. (2019) 39 Cal. App.5th 634.
30. 2010 ADA Standards for Accessible Design, published by the Department of Justice.
31. Web Content Accessibility Guidelines. www.w3.org/TR/ WCAG20.
32. 28 CFR section 36.304(b).
33. US Census Bureau’s 2010 Survey of Income and Program Participation.
34. IRS Code section 44, subdivisions (a) and (b).
35. IRS Code section 44(c)(2).
36. IRS Code section 190.
THE AUTHOR, Mark Gibson, LLB, can be reached at MGibson@professionals-law.com.
