No Good Deed Goes Unpunished
Why A New Market for Insurers to Protect Small Businesses is Needed
The Americans with Disabilities Act (ADA) was signed into law by
President George H. W. Bush on July 26, 1990 with the good intentions of
helping people with disabilities. It is a federal civil rights law that
prohibits discrimination against people with disabilities in everyday
activities. The ADA guarantees that people with disabilities have the
same opportunities as everyone else to enjoy employment opportunities,
purchase goods and services, and participate in state and local
government programs.
The stated goal of the ADA was to eliminate discrimination against
individuals with disabilities. A major source of discrimination suffered
by disabled individuals is the inability to gain access to public
accommodations such as restaurants, hotels, movie theaters, gas stations
and the facilities of other small businesses.
In truth, the ADA advocates and their lawyers litigated under the ADA
with the sole purpose of making money. Most had no intention or concern
about the needs of those with disabilities. They took advantage of the
provisions of the statute that allow individuals to enforce the
accessibility requirements to bring a private right of action against
individual businesses and property owners.
Under the private right of action allowed by the ADA an aggrieved party
can seek injunctive relief remedying the violation and attorney's fees
and costs. Monetary damages are not available to private parties seeking
to enforce the requirements of the ADA.
By providing differing remedies for private and public enforcement
revealed to abusers a method to profit from the underlying intent of
Congress to prevent private plaintiffs from recovering monetary relief
under the ADA. Although the ADA sets its intent clearly, Small business
owners have found they are added to the growing evidence of abuse of the
private remedies provided by the ADA where, as a small business and
small property owner, he or she either must litigate with the ADA
advocates or succumb to the abusive lawsuit with a settlement. If they
contact a lawyer, they will be advised that they will lose the
litigation if there is even small technical errors of compliance and be
required to pay fines and attorney’s fees to the advocates and their
lawyers. The litigants and their lawyers know this and will offer to
settle for a sum close to reasonable so that they can negotiate down to a
reasonable amount.
The complaints, and discovery are all computer generated by the
advocate’s lawyers with only the names of the plaintiff, defendants and
non-compliant part of the property, changed. The litigation expense for
the plaintiff and counsel is minimal and for the defendant it is
excessive. Small business people don’t have the funds necessary to
protect themselves from an action legally filed under the ADA and
concurrently pay to bring the property into compliance. Agreeing to an
offer of settlement is the only choice available to a small business
owner because no liability policy provides coverage for the defense or
indemnity of the suit brought under the ADA.
The abuse of the ADA started with its enactment. The abuse of the ADA is
well known to Federal District Court and state judges, who see the same
plaintiffs over and over again. There is nothing the judges can do,
because of the clear language of the ADA statutes, require that the
judge fulfill the requirements of the statute.
Attempts have been made to curb the abuse. For example, in 2006, the
Hastings Womens Law Journal, 17 Hastings Women's L.J. 93 2006 published
an article entitled Private Enforcement of the Americans with
Disabilities Act via Serial Litigation: Abusive or Commendable? by Carri
Becker, then a JD candidate.
Read the full article and the proposal to market coverage at https://zalma.com/blog.
(c) 2023 Barry Zalma & ClaimSchool, Inc.