Laws meant to help the disabled have had unintended consequences
For an inkling of how good intentions can go awry, consider Title III of the Americans with Disabilities Act (ADA). Passed by Congress in 1990 with the laudable aim of giving the disabled equal access to places of business, it has been supplemented with new Department of Justice standards (in 2010, for example, the DOJ said that miniature horses can qualify as service animals). The hundreds of pages of technical requirements have become so “frankly overwhelming” that a good 95% of Arizona businesses haven’t fully complied, says Peter Strojnik, a lawyer in Phoenix. He has sued more than 500 since starting in February, and says he will hit thousands more in the state and hire staff to begin out-of-state suits.
Businesses that brave court instead usually lose. Lawyers need only show that a violation once existed—a bathroom mirror, stall partition, or sign improperly positioned can be enough, as is having handicapped parking marked with faded paint. Violators must pay all legal fees. Mr Strojnik uses the money taken in to pay helpers, including testers who hunt for infractions and serve as plaintiffs, and puts the remaining proceeds into his charity, Advocates for Individuals with Disabilities. People should give attorneys like him who enforce the law a break, he says, and instead “be grumpy at Congress”.
The money machine has sped up in the past couple of years, with some plaintiffs now filing more than two dozen lawsuits a week, says Richard Hunt, a Dallas lawyer who defends businesses and teaches disability law at Southern Methodist University. Small businesses typically settle for $3,500 to $7,500. That’s a bargain compared to the cost of a court fight, Mr Hunt says, and, for the lawyer and plaintiff, good money for a few hours’ work.
California offers a bigger bonanza. The state’s Unruh Act awards a disabled plaintiff up to $4,000 for each time he or she visited, or wished to visit, an offending business. This increases the cost of losing a lawsuit, so California’s small businesses typically pay settlements of $15,000 to $20,000, says Tom Scott, head of the Sacramento branch of the National Federation of Independent Business.
Nearly all California businesses have at least one violation, perhaps of a state building code, says Marejka Sacks, a paralegal at Moore Law Firm in San Jose. Her team cuts businesses slack for “the little minutiae stuff,” she says, but has still sued more than 1,000 since switching from criminal law to ADA infractions in 2009. Proving that a violation has caused a handicapped person difficulty, discomfort, or embarrassment is “not a difficult threshold”, she says. Nineteen of every 20 businesses paid up to avoid trial.
Serial filers say they provide a valuable service because Congress did not fund a dedicated enforcement bureaucracy. Why do businesses think it’s OK to risk our safety for profit?, asks Eric Wong of the Disability Support Alliance, himself a wheelchair user. He says that those who think there are thousands of wasteful lawsuits share “the delusional rationalisations of serial ADA violators”.
What’s next? Omar Weaver Rosales, a Texas lawyer, has sued about 450 businesses in the past two years; more than 70% paid up to avoid a trial. But even more lucrative pastures are coming into view. In March a California judge ordered Colorado retailer Bag’n Baggage to pay $4,000 in damages and legal fees thought to exceed $100,000 because its website didn’t accommodate screen-reading software used by a blind plaintiff. Mr Rosales says extending ADA rules to websites will allow him to begin suing companies that use colour combinations problematic for the colour-blind and layouts that are confusing for people with a limited field of vision.
The DOJ is supporting a National Association of the Deaf lawsuit against Harvard for not subtitling or transcribing videos and audio files posted online. As such cases multiply, content may be taken offline. Paying an accessibility consultant to spot the bits of website coding and metadata that might trip up a blind user’s screen-reading software can cost $50,000 for a website with 100 pages. Reflecting on the implications of this, Bill Norkunas, a Florida disability-access consultant who was struck with polio as a child (and who helped Senator Ted Kennedy draft the ADA), says that removing videos that lack subtitles would deprive wheelchair users and the blind, who could at least listen to them. Mr Norkunas hopes that won’t happen, but reckons it very well might.
Article originally posted at http://www.economist.com/news/united-states/21699486-laws-meant-help-disabled-have-had-unintended-consequences-frequent-filers?frsc=dg|d