Recent Changes to the Americans with Disabilities Act: Congress Takes Aim at Litigation Reform

On February 15, 2018, the House of Representatives, in a largely partisan vote, passed the ADA Education and Reform Act (H.R. 620).  Proponents of the bill contend that the law is intended to curb vexatious and predatory litigation practices against property owners and small businesses over technical violations of the Americans with Disabilities Act (“ADA”).  The bill is now pending a vote in the Senate.

If passed by the Senate, the bill would prohibit the filing of civil actions based on architectural barriers to access public accommodations unless certain pre-litigation procedures are followed. Specifically, prior to the initiation of a lawsuit, the plaintiff must provide to the owners and operators of the property written notice of the encountered barriers.  The notice must be specific enough to identify: (1) the address of the property; (2) the specific ADA sections alleged to have been violated; (3) whether a request for assistance in removing the barrier was previously made; and (4) whether the barrier is permanent or temporary in nature.

Upon receipt of this notice, owners and operators will have 60 days to provide the aggrieved person with a written description of the intended plan to address the alleged barriers.  If such a plan is provided, the owners and operators would then have an additional 60 days to either remove the barriers pursuant to the plan or, at the very least, make “substantial progress” towards removing the barriers.

A would-be plaintiff will be barred from filing a lawsuit under either Section 302 or 303 of the ADA unless these procedures are strictly followed. Further, the new bill mandates the Judicial Conference of the United States to develop a mediation and alternative dispute resolution program for the expedient resolution of ADA-based lawsuits.   

For California property owners and business operators, the passage of H.R. 620 is unlikely to have a discernible effect on their susceptibility to access-based lawsuits.  California’s Civil Rights Act (Civil Code section 51 et seq.) allows plaintiffs to initiate similar lawsuits (and potentially obtain broader remedies) as those allowed under the ADA.  Thus, H.R. 620 may simply incentivize plaintiffs to limit their claims to California-based statutes.  Accordingly, California property owners and business operators that desire to avoid being sued for access-based violations should consider retaining an architect specially licensed to investigate and repair these types of barriers (known as a CASp architect) to inspect their property to determine whether, and to what extent, repairs should be made before having to do so in response to a lawsuit. .

Daniel Nevis is a partner at the law firm of Miller Morton Caillat & Nevis, LLP, located in San Jose, California.  If you have questions for Daniel about this article, please email him at djn@millermorton.com