Grasshopper Soup: ADA litigation reform needed
November 30, 2010
TRUCKEE/TAHOE, Calif. and#8212; Lawsuits involving the Americans with Disabilities Act are a national story with the usual heroes and villains. Disabled access has improved, but lawsuits increase, even though some plaintiffs have been barred by federal judges from filing more lawsuits. At least one appeal on behalf of an ADA advocate has been refused by the U.S. Supreme Court. One attorney used the same six disabled plaintiffs in 354 lawsuits. Even golf courses have been sued for having wheelchair barriers.
Disabled persons, according to the ADA, must utilize the goods and services of the businesses they sue, and must intend to return to do business there again. Scott Johnson, who is suing several local businesses, can afford to make the four-hour round trip from his home frequently to shop at the hardware store in Truckee, hang out at Donner Lake and eat out every night. If he settles for the minimum award allowed per case, as he claims he does, he has earned millions since he started his little cottage industry of lawsuits.
Johnson accused local businesses of discriminating against the disabled. All he has to do is prove ADA non-compliance, not discrimination. There is a monolithic difference between deliberate discrimination against the disabled and ADA non compliance. So, why bother making the allegation? Non compliance does not prove discrimination.
We will probably never know if Mr. Johnson is a hero or a villain. He keeps no records of his vexatious lawsuits. He must know how much he can get away with in our largely adversarial legal system. It is legal to prosecute. The law is the law.
The ADA protects some 40 or 50 million disabled persons. The majority of ADA regulations, conflicts and costs relate to wheelchair accessibility. Some say less than 2 percent of all disabled people use wheelchairs, and most who do live in extended care facilities already in compliance with ADA requirements. Out of that relatively small number of wheelchair users, how many do business on a regular basis in Truckee, and plan to return?
Reasonableness and good faith should be at the heart of all civil disputes. Suspiciously, they are lacking in many ADA lawsuits. Businesses should be allowed to provide only the access necessary, even if somewhat limited, for the number of wheelchair users who actually patronize them on a regular basis, but that does not seem to be the case.
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There is a great book that thoroughly illustrates the alarming extent of this nationwide controversy. The Death Of Common Sense, by Philip K. Howard, is stock full of absurd, but true, examples of people using the Americans with Disabilities Act, and other laws, to make unreasonable, time-consuming and expensive demands on everyone else in society. In the name of fairness and civil rights they cost individuals, businesses and entire municipalities so much that some people even call the lawsuits legal extortion.
Some disabled rights advocates even go so far as to reject perfectly good solutions that completely address their concerns but result in separate facilities for them. Instead, they demand expensive and unreasonable access modifications to all existing facilities.
When any kind of legal absolutism creeps into society, look out. It tends to outlaw common sense, and erode democracy. As Mr. Howard says in his book, and#8220;Curing the injustices of history and circumstance by awarding open-ended rights resurrects the specter of special legal privilege, a stature so inimical to a free society that it causes immediate and lasting discord.and#8221;
Not all ADA lawsuits are frivolous. But they have forced businesses to downsize, file for bankruptcy and even close down. They may very well cause more hardship for families and employees of businesses than they claim to remove for the disabled.
Bob Sweigert is a Sierra Sun columnist, published poet, former college instructor and ski instructor. He has a B.A. and an M.A.T. from Gonzaga University. He has lived at Lake Tahoe for 28 years.