Rep. Calvert Testifies on the Need to Stop ADA Lawsuit Abuse
Today, Congressman Ken Calvert (CA-42) testified before the Subcommittee on Constitution and Civil Justice of the House Judiciary Committee in support of the ACCESS Act, H.R. 241, which he introduced on January 9, 2015. The ACCESS Act is designed to help small businesses comply with the Americans with Disabilities Act (ADA).
“The ADA is an incredibly important law for disabled Americans and Congress needs to act to ensure it continues to benefit the disabled rather than trial lawyers,” said Rep. Calvert. “Far too many small businesses in California and around the country are being targeted by lawyers who are more concerned with lining their pockets than actually improving access for the disabled. My bill, the ACCESS Act, makes a common sense reform that will actually improve access for the disabled while protecting American job creators.”
ACCESS Act Background:
The ACCESS (ADA Compliance for Customer Entry to Stores and Services) Act would alleviate the financial burden small businesses are facing, while still fulfilling the purpose of the ADA. Any person aggrieved by a violation of the ADA would provide the owner or operator with a written notice of the violation, specific enough to allow such owner or operator to identify the barrier to their access. Within 60 days the owner or operator would be required to provide the aggrieved person with a description outlining improvements that would be made to address the barrier. The owner or operator would then have 120 days to remove the infraction. The failure to meet any of these conditions would allow the suit to go forward.
The purpose of the ADA is to ensure appropriate remedial action for those who have suffered harm. Although there are times when litigation by harmed individuals is necessary, there are an increasing number of lawsuits brought under the ADA that are based upon a desire to achieve financial settlements rather than to achieve the appropriate modifications. ADA lawsuits are especially prevalent in California. According to the California Chamber of Commerce, California has 40% of the nation’s ADA lawsuits but only 12% of the country’s disabled population. These lawsuits place exorbitant legal fees on small businesses and often times they are unaware of the specific nature of the allegations brought against them.
Below is Rep. Calvert’s testimony:
Mr. Chairman and distinguished Members of the Subcommittee on the Constitution and Civil Justice, thank you for the opportunity to testify today on the need for legislation to promote the effective enforcement of the Americans with Disabilities Act (ADA) regulations on businesses.
As you know, the Americans with Disabilities Act is undoubtedly one of the most important pieces of civil rights legislation. We can all agree that providing all Americans with access to public accommodations is an invaluable legislative objective.
The purpose of the ADA is to ensure access for the disabled to public accommodation and provide appropriate remedial action for those who have suffered harm as a result of non-compliance. Although there are times when litigation by harmed individuals is necessary, there are an increasing number of lawsuits brought under the ADA that are based upon a desire to achieve financial settlements rather than to achieve the appropriate modifications for access. These lawsuits filed by serial litigants, often referred to as “drive-by lawsuits,” place exorbitant legal fees on small businesses, and often times business owners are unaware of the specific nature of the allegations brought against them.
In early 2011, frivolous ADA lawsuits against small businesses reached an all-time high throughout California, and as a result, my good friend and colleague, former Congressman Dan Lungren (R-CA), championed the issue and introduced the original ACCESS Act (H.R. 3356) in the 112th Congress. I was pleased to have been afforded the opportunity to take over the legislation for reintroduction beginning in the 113th Congress. In January 2015, I reintroduced the legislation as H.R. 241, the ACCESS Act.
H.R. 241 is a cost-free and commonsense piece of legislation that would alleviate the financial burden small businesses are facing, while still fulfilling the purpose of the ADA. Any person aggrieved by a violation of the ADA would provide the owner or operator with a written notice of the violation, specific enough to allow such owner or operator to identify the barrier to their access. Within 60 days the owner or operator would be required to provide the aggrieved person with a description outlining improvements that would be made to address the barrier. The owner or operator would then have 120 days to make the improvement. The failure to meet any of these conditions would allow the lawsuit to go forward.
I think we can all agree that we must ensure that individuals with disabilities are afforded the same access and opportunities as those without disabilities. Frivolous lawsuits do not accomplish this goal. Allowing small business owners and cities alike to fix ADA violations within 120 days, rather than waiting for lengthy legal battles to play out, is a more thoughtful, timely, and reasonable approach.
While the ADA is a national law, California has become ground zero for ADA violation lawsuits. In fact, California is home to more federal disability lawsuits than the next four states combined. A 2014 report determined that since 2005, more than 10,000 federal ADA lawsuits had been filed in the five states with the highest disabled populations; 7,188 of which were filed in California. Violating the ADA in California carries a minimum $4,000 penalty in addition to the plaintiff’s legal fees. As of 2014, according to the US Census Bureau, 31 individuals made up at least 56% of federal disability lawsuits in California. Those figures and the real life toll it takes on small business owners, are why I introduced this legislation to allow for a “fix-it” period.
However, it is clear that this is not just a major problem in California. The introduction of similar legislation by the gentleman from Texas, Representative Ted Poe, shows just that. His legislation authorizes a training and education component for the affected community and Certified Access Specialists, which I would welcome and embrace as an amendment to my bill.
This is also a bipartisan issue supported by states. I was pleased to see that California SB 269, the text of which I would like to submit for the record as well as a related article, passed unanimously in the State Assembly and Senate, and was signed into law by Governor Jerry Brown on May 10th, 2016. SB 269 was authored by a friend of mine, Democratic State Senator, Gen. Richard Roth. The legislation is similar to the ACCESS Act in that it allows businesses to take immediate steps to become accessible by providing them with 120 days, from receipt of a Certified Access Specialist report, to resolve any identified violations without being subject to litigation costs or statutory penalties. I worry that with California acting to curb these lawsuits, some of these serial litigants will try their trade in other states.
Without question, the ACCESS Act will ensure that the ADA is used for its true purpose of guaranteed accessibility to public accommodations for all Americans while eliminating abusive, costly and unnecessary lawsuits for small business owners.
Once again, I appreciate your time today and stand ready to assist the committee in any way possible to ensure this legislation moves forward.