The thirty-first anniversary of the signing of the Americans with Disabilities Act (ADA) on July 26, 2021 has been celebrated with self-congratulatory press releases, a renewed recognition by the Biden administration of the importance of the act and a rising number of lawsuits and demands under Title III of the ADA. While the importance of the ADA cannot be stressed enough, the application of Title III across the country is inconsistent and, in any particular case, uncertain.
Title III forbids discrimination against those with disabilities by “public accommodations.” The statute lists ten categories of public accommodation with many specific examples in each category, but the bottom line is simple: A business that deals with the public is almost certainly a public accommodation. There are interesting unresolved issues about whether internet-only businesses and plasma collection centers are public accommodations, but for any business that sells to or buys from the public the safest assumption is that it is a public accommodation subject to Title III.
Title III’s coverage is not limited by the size of a business, a frequent source of confusion for business owners. Title I, which concerns employment matters, does not apply to businesses with fewer than 15 employees. Title III has no such limit. Neither is there any limit based on profit or revenue. The lemonade stand the neighborhood kids set up on the weekend is just as much a public accommodation as the local shopping mall.
Title III forbids discrimination, but discrimination has a peculiar definition. The purpose of the ADA is to allow those with disabilities equal participation in the social and economic life of the nation, but “equal treatment” often hinders participation because common building practices and business policies block those with disabilities. As a result, the ADA does not require just that those with disabilities be treated equally. It often compels action. It requires, for example, that physical businesses modify their parking, restrooms, sidewalks, sales counters and a host of other things in ways that only benefit those with disabilities. Subject to arguments about just why a website is subject to the ADA, it is now clear that websites must be modified to be usable by those with disabilities even if the modifications are of no benefit to those without disabilities. And businesses are required to modify their policies and procedures when it is necessary for a person with a disability to have equal access to their goods and services. A businessperson with a good heart who treats those with disabilities with scrupulous fairness can still violate the ADA without intending to or knowing that they are doing so.
These unusual features of the ADA are why, 31 years after its passage, you can find ADA violations in any city or town without driving very far. Recent studies of website accessibility indicate that no more than 3 percent of public-facing websites are fully accessible to those with disabilities. The rules about modifying “no animals” polices are so vague and confusing that some businesses have simply given up and just allow animals rather than trying to allow only what the statute requires. Uncertainties about what Title III requires results in non-compliance, and that results in lawsuits.
Individual lawsuits under Title III of the ADA are not a major economic risk to most businesses despite headlines about how various plaintiffs’ law firms are unfairly targeting innocent businesses. (“SF's Chinatown Businesses Hit with Lawsuits by Prolific ADA Plaintiffs, Officials Vow Help” and “The Americans with Disabilites Act Celebrated 31 Years This Week” appeared side by side in my Google news feed). This is because Title III has no damage remedy. The only relief available is injunctive relief plus attorney fees that federal courts generally calculate on an hourly basis. There is no upside for a plaintiff’s lawyer to litigate a case through trial because it is more profitable to operate a volume business with quick, cheap settlements. These generally require that whatever should be fixed is and that the plaintiff’s lawyer is paid less than the cost of a rudimentary defense. As a result, most cases are over before they’ve really started.
A final unusual feature of Title III litigation is that it is intensely local despite involving a federal law. Very few Title III cases are appealed so district court judges are relatively unconstrained in how they interpret the law. The law generally applied in ADA website cases in the Western District of Pennsylvania is different than the law applied in the Eastern District of Pennsylvania, for example. Different judges also have different attitudes toward the volume litigation business model. Cases filed in the Fort Worth division of the Northern District of Texas are handled in a completely different manner than cases filed in the Dallas Division and the different settlement costs of otherwise identical cases reflects this. In a Title III lawsuit, you don’t research federal law, you research the decisions of the judge to whom the case is assigned. A different judge down the hall may not agree on important substantive and procedural issues and the circuit court may have never considered issues that you think are important. But even that amount of research is likely to be a waste of time because the cash price of settlement is so small it usually doesn’t make sense to file an answer, let alone a Rule 12(b) or other dispositive motion.
Title III of the ADA is an unusual law. It requires unequal treatment to achieve equality of opportunity. The most contentious issues concerning its application remain unresolved after three decades because cases settle so quickly, almost nothing reaches the circuit courts or Supreme Court. It is a federal law, but its application varies not just from circuit to circuit but also from judge to judge. And, finally, the best defense is often surrender. Congress may soon address some of these issues but for now Title III of the ADA is likely to remain just as uncertain as it is important in its application.
