Today we wanted to give a quick update on what has been happening over here at the LRS...Architecture offices, preview our next CE webinar and discuss a recent article about accessibility lawsuits.
Last week we hosted a webinar on the new CBC sections that require raised circulation paths. It was a huge success and we had great feedback from the attendees. Our plan was to make the recording available, however, technology failed us this time around and we were unable to access the file after the webinar. Since we had many attendees request the recording, we decided to host an encore presentation on Wednesday, Nov 17th at 10am PST. If you missed the first webinar, you can sign up for the encore presentation at www.cadisabilityaccess.com/webinar-registration .
As for the remainder of the code updates for this code cycle, we will be continuing with our series next week! Be on the look out each week for a new update. We also do not have a date set yet, but are beginning to work on our next webinar: Programming- How to Incorporate Accessibility from the Start. It will be held late January/early February and will again count for 1 hour of CE credits for license renewal.
Finally, we wanted to share an article we recently read and give you our take on it. The article was published on The Regulatory Review: A Publication of The Penn Program on Regulations and was written by Jasmine Harris and Karen Tani, both professors at the University of Pennsylvania Law School. You can read the full article here: https://www.theregreview.org/2021/10/25/harris-tani-debunking-disability-enforcement-myths/ .
The article is titled Debunking Disability Enforcement Myths and focused on Title III regulations from more of a federal standpoint than a California standpoint. Most of you reading this are probably most familiar with California regulations and so we will share our opinions later on this blog post.
Here is a brief summary of how they debunked three common myths about ADA lawsuits.
1. To file a disability lawsuit against a place of public accommodation is to somehow take advantage of the system.
The argument here is that the lawmakers used private lawsuits to bridge a gap between political parties who feared too much overreach and regulation and those that wanted to see change despite the current administration. The overarching theme of this myth is that country-wide Title III is significantly underenforced.
2. The Americans with Disabilities Act is the source of predatory, serial litigation. It creates financial incentives for lawyers to recruit disabled plaintiffs with little to no connection with the program, service, benefit, or place of public accommodation targeted.
First, the federal ADA does not allow for plaintiffs to receive punitive damages. Only some states have allowed for plaintiffs to receive monetary damages for Title III lawsuits: California and Florida being the most prolific.
Second, courts generally require that the plaintiff have a plausible connection to the business being sued or prove in some way they did not just drive by and write down violations.
Third, plaintiffs are only entitled to recover attorney fees when they are the prevailing party. Meaning, a plaintiff could not sue every business on a block without violations actually existing in the hopes that the attorney would collect large fees for the lawsuits despite the outcome of the case.
They state: "Together, these three contextual points make clear that serial plaintiffs and “drive-by lawsuits” are in some sense outgrowths of the law, but not in the ways that many public commentaries suggest. Public distaste for disability discrimination plaintiffs and their lawsuits appears to be tied to societal misunderstandings about the ADA, disability law, and the nuances of disability as a sociopolitical identity."
3. Legal reform efforts must focus on stopping or, at a minimum, delaying disability lawsuits. They cost too much and force small business owners, particularly those in minority communities, out of business.
While alternatives are suggested the main point made by the authors is that businesses have essentially been given a 31 year warning that they could be sued for not complying with the ADA. Even in California, with a CASp report a business is allowed to make remediation efforts each year and as long as they are showing a good faith effort to stick with their timeline for barrier removal, the fines are greatly reduced or even eliminated all together.
The authors did a great job of debunking and explaining the purpose for allowing disability lawsuits against places of public accommodations. We highly encourage you to take a look at the original article.
Obviously being focused on California, and most of us being all to familiar with serial litigants in our hometowns, we have a more skewed concept of what disability access lawsuit abuse can look like. It does go back to legislation that is unique to California allowing for the plaintiff to collect damages for construction related discrimination. The federal ADA law only allows for plaintiffs to collect attorney fees and demand remediation.
It was especially interesting to read this article after recently traveling through other states and noticing a huge lack of accessibility in places of public accommodation. Even government programs and services lack accessible parking, compliant ramps, and other basic access that we are used to seeing and designing here in California. States that do not allow for monetary damages and have a much lower rate of lawsuits are overall far behind California in complying with the ADA both in new construction and existing facilities.
Not to say that we love serial litigants or are ever happy when we get a call about a business being sued, but allowing for private litigation it does seem to be the most effective way that changes are coming about to provide access for those with disabilities. We would love to hear from you if you have ideas to curb lawsuit abuse. Comment here or send us an email.
Our hope is to be a bridge and provide services that allow businesses to protect themselves while being compliant with federal law and California building codes, and providing access to those with disabilities. Whether it is consulting on new construction projects so accessibility is seamlessly incorporated from the beginning of the project or providing CASp services for a remodel, we are here to make accessibility easier for all involved.