As stated by the Ninth Circuit Court of Northern California in Molski v. Evergreen Dynasty, “for the Americans with Disabilities Act (ADA) to yield its promise of equal access for the disabled, it may indeed be necessary and desirable for committed individuals to bring serial litigation, advancing the time when public accommodations will be compliant with the ADA.”
But critics and ADA advocates are still on the fence.
Is serial litigation truly the right way to advocate for equal access, or does it portray advocates in a negative and unfavorable light? Some believe it’s best to face the problem of ADA noncompliance head-on, using litigation as a vessel to obtain justice and the right to equal access for all.
Advocates like Albert Dytch
A famous example lies in the case of Albert Dytch. Dytch is an advocate for the right to equal access. He has a disability— he is a man in his early 70s who has muscular dystrophy.
Dytch was thrown into the headlines when The New York Times Magazine published an article about him, titled: “The Man Who Filed More Than 180 Disability Lawsuits: Is It Profiteering – or Justice?” which received controversial attention, beginning with the title alone.
Perpetuating Myths about Disabilities and the ADA
The problem with labeling serial litigation as profiteering is that filing disability lawsuits is not profiteering, regardless of whether the same person has filed one disability lawsuit or one hundred.
In the NY Times article, the author points to the increase of ADA lawsuits as potential proof that disabled litigants are exploiting the system instead of framing the issue as what it is: a call for equality and disability justice. In doing so, the article promotes three false myths, highlighted by The Regulatory Review:
Myth #1: To file a disability lawsuit against a place of public accommodation is to take advantage of the system somehow.
For decades, the ADA has been (and still is) significantly underenforced. Despite this, The Regulatory Review notes that “fear of the disability con” taints litigation about public accommodations.
The disability con, or popular perceptions of fraud and fakery, have seeped into U.S. society and still exists today. As Doron Dorfman discovered, people with disabilities pay the price for the legal recognition of their rights. This includes people who park in accessible parking spots, file disability lawsuits, use service dogs, move to the front of lines, receive Social Security benefits, or request academic accommodations. Dorfman correctly states that they are often viewed as faking disabilities and abusing the law. Dorfman concludes that this stereotype serves as a barrier to preventing Americans with disabilities from fully participating in society, as it undermines public legitimacy of rights. Fear of the disability con thus creates “unstable ground” for “the goal of building an accessible world,” according to Dorfman and Mariela Yabo.
Myth #2: The Americans with Disabilities Act is the source of predatory, serial litigation. It creates financial incentives for lawyers to recruit disabled plaintiffs with little to no connection with the program, service, benefit, or place of public accommodation targeted.
The Regulatory Review reports that public distaste for disability discrimination plaintiffs and their lawsuits appears to be tied to societal misunderstandings about the ADA, disability law, and disability.
Myth #3: Legal reform efforts must focus on stopping or, at a minimum, delaying disability lawsuits. They cost too much and force small business owners out of business, particularly those in minority communities.
The Regulatory Review looks to Sam Bagenstos, who showed how the imposition of limitations on civil rights remedies did not decrease the number of cases brought; it also affected the character of the cases filed.
Bagenstos stated that “concern with abusive litigation motivates the adoption of limitations on remedies; those limitations lead plaintiffs’ lawyers to engage in litigation conduct that appears even more abusive; the newly energized perception of abuse motivates [the] adoption of even more limitations; and so on.”
Conclusion
Whether litigation is the appropriate measure in every situation or not is moot; ultimately, the focus should be on ensuring all individuals have equal access to the programs and services provided by covered entities. Albert Dytch summed up his position quite nicely:
“The civil rights of those with disabilities are violated every time they’re denied the same benefits and privileges as the non-disabled. Yet relatively few have the time, energy, courage, and fortitude to insist that these rights are honored and protected in accordance with the law.”
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