Workplace discrimination Drive-by lawsuits threaten the future of a civil rights law I fought for to help bring disabled people into the economy, not to destroy businesses.

Automatic door buttons, wheelchair ramps, signs with braille and raised characters. Simple accommodations such as these have transformed the lives of millions of Americans with disabilities, creating new opportunities in work, sports, education, and healthcare. These accommodations are so ubiquitous in 2020 that we barely notice them today — but just 30 years ago, the world was a far different place.

Although hard to imagine now, in the summer of 1990, the doors of opportunity were quite literally closed to millions of persons with disabilities. There were few laws on the books requiring reasonable accommodations in the workplace and almost nothing to protect these individuals from discrimination.

That’s why, 30 years ago this month, I joined my colleagues on the other side of the aisle to spearhead passage of the Americans with Disabilities Act, a landmark civil rights law that brought us one step closer to realizing the founder’s vision of a society where all people have equal access to equal opportunity. The anniversary of the ADA is an ideal time to reflect on the law’s achievements and how we can ensure its continued success in the future.  

Workplace discrimination Passing the ADA and what it has done

When Sen. Tom Harkin, D-Iowa, asked me to lead the Republican push for the ADA in the fall of 1989, I agreed both on principle and for deeply personal reasons.

Animating my public service has always been the desire to help those who could not help themselves. No one fit that description better than my brother-in-law, Raymond Hansen, who as a young man, contracted polio and had to live the rest of his life with the assistance of an iron lung. During Raymond’s twilight years, his body was so weakened by the effects of polio that he asked me to carry him from room to room at a special temple service for our faith. He and I had always shared a close bond, but it was made even closer by this spiritual experience. So when the going got tough on ADA, I reminded myself why I was fighting: for Raymond and for others like him. 

And the going certainly got tough. There were multiple times throughout the legislative process that the bill’s future appeared to be in jeopardy. I had the difficult task of bridging the gap between the disability and business communities — a gap that at first seemed impassable. But with all parties acting in good faith, we were able to strike a balance that provided strong protections for persons with disabilities without imposing unnecessary burdens on small businesses and entrepreneurs.

The end result was the most significant piece of civil rights legislation to pass Congress since the Civil Rights Act of 1964. 

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Three decades later, the ADA remains a shining example of our ongoing commitment to equality for persons with disabilities. It prohibits discrimination against our fellow citizens and provides for remedies when wrongs occur. And it requires reasonable accommodation in areas such as education and employment, improving lives in countless practical ways.

Today, it’s fitting to take stock of the positive effect the law has had on millions of American families. But just as important is asking how we can secure its legacy for the next 30 years. This will require nurturing the partnership between business owners and persons with disabilities that helped lift the ADA across the finish line.  

Workplace discrimination Curbing excessive litigation

In recent years, plaintiff lawyers have exploited vulnerabilities in the ADA to weaken this essential partnership. Take the rise of “drive-by lawsuits,” in which an individual enters a place of business not looking to buy but to sue. Often disguised as customers, these lawyers target mom-and-pop shops searching for any sign of noncompliance with ADA standards. Even the most minor (and often unintended) infractions are grounds for a lawsuit — from an access ramp that is just a few inches off to a sign that uses the wrong font-size.

Sadly, this form of legal predation is only growing more prevalent. In the last decade, litigators have become increasingly aggressive in their willingness to go after unwitting business owners in what often amounts to little more than a legal shakedown. Consider that in 2019 alone, 11,053 ADA Title III lawsuits were filed in federal court — a record-breaking number that has more than doubled in the last five years.

The purpose of the ADA is to bring persons with disabilities into the economy — not to destroy the businesses they would go to in the first place. In this regard, drive-by lawsuits violate the spirit of the ADA. Worse still, they pit the disability and business communities against each other, threatening to undermine the partnership that has made the law so successful. That’s why curbing excessive litigation is key to securing the legacy of the ADA.

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The good news is there’s a potential solution: allowing businesses a brief grace period to correct accessibility violations before lawyers can bring suit. This update to the law could maintain the legal enforcement mechanism necessary to ensure ADA compliance while giving business owners sufficient time to fix mistakes that few even knew they were making in the first place. Already, states like California and Florida have led the way with proposals that provide small businesses some measure of relief from spurious lawsuits. But we need reform on a federal level.

Similar to 1990, negotiating the particulars of such an agreement will require push and pull from both sides. But I am confident that Congress can again reach a compromise — one that preserves essential civil liberties, guards against litigation abuse, and helps guarantee the ADA’s success for the next 30 years. 

Orrin G. Hatch is a former senator from Utah and serves as the Chairman Emeritus of the Orrin G. Hatch Foundation. He was a key sponsor of the Americans with Disabilities Act of 1990 and the ADA Amendments Act of 2008. 

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