With the 31st anniversary of the Americans With Disabilities Act (ADA) coming Monday, July 26, it is time to warn Maryland small businesses about ADA virtual-by lawsuits since Maryland has dropped coronavirus-related restrictions.
After reading the USA Today article, “Woman files about 500 lawsuits across US as ‘tester’ of disability compliance,” I recalled that I first learned what a tester of disability compliance in 2006 was. Living in Sykesville, I followed the activities of “ADA Shake-Down Artist” Marilynn Phillip of Hampstead, who uses a wheelchair because of post-polio syndrome and severe osteoporosis. Professor Phillips of Morgan State University filed lawsuits against several businesses in the borough of Gettysburg, Pa., because they lagged far behind compliance with the ADA.
In 2013, a federal court in Pennsylvania defined that “An ADA tester is an individual with a disability who repeatedly visits places of public accommodation with the dual motivation of verifying ADA compliance along with availing himself or herself with the goods and/or services available.” The other name of the “ADA tester” is “a serial ADA lawsuit filer.”
Also, I recalled that former Sen. Orrin Hatch (R-Utah) wrote his opinion in the USA Today last July:
“The purpose of the ADA is to bring persons with disabilities into the economy—not to destroy the businesses they would go to in the first place. In this regard, drive-by lawsuits violate the spirit of the ADA. Worse still, they pit the disability and business communities against each other, threatening to undermine the partnership that has made the law so successful. That’s why curbing excessive litigation is key to securing the legacy of the ADA.”
Note that Maryland has 604,176 small businesses, according to the 2020 data provided by the U.S. Small Business Administration. But I have no idea whether these Maryland businesses are aware of ADA drive-by lawsuits and the newly virtual-thru lawsuits.
Serial ADA lawsuit filers and “drive-by disability activists” are still taking advantage of the ADA.
“Drive-by” litigation? Some serial ADA filers have never even set foot onto the property to determine any architectural barriers for disabled individuals. For example, the serial ADA filer drives around spots violations with accessible parking spots and signs without even getting out of the car.
“Virtual-thru” litigation? For example, the woman mentioned above living in Florida visited the websites or third-party online booking sites for hotels and motels in Maine. She then filed lawsuits without seeing these properties in Maine.
For nearly two decades, unscrupulous lawyers and serial plaintiffs do not seek to increase access or eliminate barriers for persons with disabilities. Instead, their demand letters describe overly technical or potential infractions and demand thousands of dollars to settle at a price point that is slightly less than the cost to retain counsel. For example, a 59-inch-tall handicapped parking sign, instead of the 60-inch minimum, may result in a business’s liability.
Sen. Hatch exclaimed, “Consider that in 2019 alone, 11,053 ADA Title III lawsuits were filed in federal court — a record-breaking number that has more than doubled in the last five years.” The pandemic slowed 2020 Federal ADA Title III filings (10,982), but 2021 may be a record-breaker.
On Jan. 14, Rep. Ken Calvert, R-Calif., introduced the ADA Compliance for Customer Entry to Stores and Services Act (H.R. 77) (the ACCESS Act.) This bill is essentially the same as previous ADA notification bills, like H.R. 620 in 2018 and H.R. 4099 in 2019. This bill would aim to curb “drive-by” public accommodation suits by requiring that potential plaintiffs first give notice to the allegedly offending business – along with the opportunity to fix the problem – before filing an ADA suit.
However, H.R. 77 is likely not coming out from the House committee this session. The majority of these Maryland businesses could face the third threat of ADA virtual-by lawsuit, while preparing for meeting the $15 minimum wage by 2025 and recovering from the COVID-19 pandemic.
Maryland small business owners are urged to read the 279-page ADA Standards for Accessible Design (2010 Standards), which brings together the information in one easy-to-access location, and its ADA Update: A Primer for Small Business.