ADA Lawsuits: Are Major Changes Coming?

When Congress passed the Americans with Disabilities Act, or the ADA as it is routinely referred to, in 1990 it probably could not have envisioned the sheer number of lawsuits that would be filed under the ADA in the ensuing years.  While there have been some ebbs and flows in the volume of such filings over the years, ADA lawsuits, nevertheless, have, by and large, abounded and continue to do so to the present day.

The rules of engagement with respect to ADA lawsuits may have begun to change, however, on February 15, 2018 when the United States House of Representatives passed H.R. 620, the ADA Education and Reform Act of 2017.  The bill is now pending in the Senate.

While there are probably two major components of H.R. 620, the most significant changes with respect to lawsuits under the ADA are as follows:

• Prior to filing a lawsuit, the aggrieved party must serve the owner or operator of a place of public accommodation with a detailed notice of the alleged violation or violations of the ADA;
• The owner or operator is then provided with 60 days to respond to the notice, describing how the violation or violations will be addressed; and
• The owner or operator is then given another 120 days to correct the violation or violations—referred to as removing the barriers—or to at least make substantial progress in doing so.

Currently, there is no requirement that a party suing for alleged violations under the ADA provide any kind of notice to the owner of operator of a place of public accommodation prior to filing a lawsuit.  As such, opponents of H.R. 620 fear that the bill will dramatically impact access to courts for persons with disabilities seeking to remedy ADA violations.  Proponents of the law, on the other hand, believe changes are necessary to curtail what they see as an abundance of frivolous lawsuits designed to do nothing more than generate attorney’s fees.

If the ADA Education and Reform Act of 2017 passes the Senate, it is unclear what impact, if any, it will have on the newest trend in ADA lawsuits, namely lawsuits against owners or operators of websites, alleging that those websites are not accessible to the legally blind or visually impaired.  At first blush, it would not appear that this amendment to the ADA would apply to such claims in that the bill specifically uses the term “architectural barriers” which would seem to confine its scope to physical issues with a place of public accommodation.  Of course, since websites did not exist when the ADA was passed in 1990, the true scope of the ADA Education and Reform Act of 2017 will probably be an issue shaped by courts in the years to come.