On February 15, 2018, in an apparent effort to curb the phenomenon known as “drive-by” lawsuits, the US House of Representatives passed an amendment to the Americans with Disabilities Act (ADA) entitled the ADA Education and Reform Act (HR 620). In these “drive-by” lawsuits, groups of lawyers and serial plaintiffs have sued thousands of businesses for relatively minor physical access barriers found in hopes of quick settlements. According to the bill’s author, Representative Ted Poe (R-TX), there is currently “a whole industry made up of people who prey on small business owners and file unnecessary and abusive lawsuits. This bill will change that by requiring that the business owners have time to fix what is allegedly broken.”
Under the bill passed by the House, before filing suit, those wishing to sue businesses in federal court for an alleged ADA public accommodation violation for failure to remove an “architectural barrier,” must first send pre-suit notice to the business specifying in detail: (1) the circumstances under which an individual was actually denied access, (2) the specific sections of the ADA alleged to have been violated, (3) whether a request for assistance in removing an architectural barrier to access was made, and (4) whether the barrier to access was a permanent or temporary barrier.
After sending notice, the prospective plaintiff must then give the business 60 days to respond with a remediation plan and a total of 120 days from the date of notice to remove the barrier or make substantial progress in removing the barrier.
The ADA currently does not have a “notice and opportunity to cure” requirement and plaintiffs today may file suit without providing any notice to businesses regarding alleged ADA violations. It has been reported that more than 7,500 ADA Title III lawsuits were filed in federal court in 2017 alone.
The bill now moves to the Senate, where its prospects remain uncertain.
ADA Website Accessibility Litigation
In the last two years, hundreds of retailers, restaurants and hotels have been targeted in ADA website accessibility lawsuits brought by serial plaintiffs who claim the websites violate the ADA because they contain barriers to access for the visually impaired. The bill in its present state only covers “architectural barriers.” We will continue to track the bill as it goes through the Senate to determine how, if at all, it will impact website accessibility claims.
Steptoe’s ADA Website Accessibility Team has successfully represented dozens of retailers, restaurants, and hotels against these website access claims. We have also advised several businesses how to avoid future lawsuits by becoming compliant with the Web Content Accessibility Guidelines ("WCAG") 2.0, which has been adopted as the de facto standard for website accessibility.