The Real Problem with “Drive-By Lawsuits”

On Dec. 4 the show 60 Minutes featured a segment on “Drive-By Lawsuits” hosted by Anderson Cooper. A drive-by lawsuit is a lawsuit filed by a disabled person based on an ADA (or other accessibility law depending on country of origin) violation. These lawsuits are framed as a nuisance as they are sometimes filed by people or law firms who do this regularly.

There are a number of problems with the segment.

It utilizes stigmatizing footage of disabled people

The segment utilizes background footage of Ingrid Tischer who has this to say about seeing herself in this context,

You know what’s awesome? Seeing yourself — excuse me, parts of yourself, the non-mouthy parts — on The TeeVee showing how disability access in built environments are achievable and cool in a segment where the talking parts of other people — excuse me, men people — explain the horror of running a business that doesn’t break the law or limit their customer base. Courtesy 60 FoxNews Minutes

The footage does not include her head. She is completely depersonalized.

It doesn’t delve into why there are so many ADA violations

There is no active monitoring of ADA compliance. Dealing with infractions of laws governing accessibility (in the US & many other countries) is often primarily done through complaints. So while the law may say what needs to be done, unless someone actually complains there is little incentive to actively comply. There is no independent body doing regular inspections and meting out fines for noncompliance.

The segment doesn’t question why so many of the people hit with these so called nonsense lawsuits are ignorant of the law but it shows that ignorance as reasonable. No one questions why business owners are so unaware of their responsibilities.

It suggests that compliance is only necessary if people are complaining

One of the questions that every business owner is asked is whether anyone has either actually used an accommodation or asked for it prior to the lawsuit. The answer is invariably “no”.

This is framed to seem as though the accommodation has been up till now unnecessary and that the request was ultimately frivolous. Ingrid Tischer provides insight into why disabled people don’t make requests and don’t forcefully complain if an accommodation is unavailable.

You know why I never used to ask for a pool lift and maybe never even sought one out? (Despite excellent legal reasoning that ought to render the issue moot.) Because I’ve been hardened by the indifference of business owners. You know – the people who admit on national television they weren’t following the law and somehow are the sympathetic victims of rapacious crippled people.

This segment ultimately frames accessibility law as overreaching legislation that demands things that are unnecessary but fails to look at the reality of living in a world that is routinely inaccessible. There is very real truth to the idea that if you aren’t expected to show up then you will simply learn not to. Particularly if your presence and needs are treated as an inconvenience.

It frames people who file these suits as nuisances

One of the glaring omissions of the 60 minutes piece is that it doesn’t look at how these ADA infractions would be ameliorated if not for these lawsuits (in fact it none to subtly suggests that maybe there didn’t really need to be accommodation in the first place).

The ADA is law and yet it is widely overlooked by the people who are supposed to be subject to it. The segment points out repeatedly that proprietors don’t think that the people filing are actual customers but my question is; so what? These accommodations aren’t supposed to be things people have to ask for. They are simply supposed to be available. Why is it relevant who points it?

Cooper also talks about the lack of warning before a lawsuit but he doesn’t actually look at whether warnings are effective. In fact, they go out of their way to make accommodations seem inconvenient and excessive. They point out both the specificity of the requirements (though brief lip service is paid to the importance of this) and the costs. Then they go out of their way to say that the expensive accommodation goes unused.

It basically undermines the very purpose of the ADA.

It doesn’t look at how poor enforcement of the ADA has led to the abuse of disabled people

The segment also looks at how unscrupulous lawyers recruit disabled people to use as claimants and then cheat them out of the proceeds. This is a real concern. The segment however, points at the ability to sue over ADA violations as the major contributing factor in this kind of economic abuse. However, if the ADA was actively enforced it would do away with the very need for widespread filings and thus make this kind of abuse less likely to occur. Suing over ADA violations would be less lucrative.

It puts the blame for societal stigma against disabled people on disabled people who demand access

Perhaps the most egregious part of the segment is that it makes a point of voicing the idea that demands for access breed ill will toward disabled people. The problem is that this ill will already existed. The proprietors just had plausible deniability. They didn’t accommodate because they just didn’t know any better and they didn’t know any better because they didn’t take time  to think about the needs of disabled people and their legal obligations towards them. This lead to the creation and maintanence of inaccessible spaces.

Ill will doesn’t only exist when people acknowledge it. It was just subversive and deniable. Having it pointed out and there being a financial ramification is not disabled people’s fault. Saying it is, only serves to encourage disabled people to stay silent.

***

It would be far better if government took an active role in monitoring and enforcing accessibility legislation. It would likely create a more accessible environment. It would also remove the need for mass lawsuits. It would also remove the proprietor as victim narrative because the law would be enforced more uniformly. People would not be able to opine that they had been hit with an infraction when the guy down the street did not.

Complaint based systems are not useful in enforcing legislation that is designed to help a marginalized group. It creates an adversarial environment where the marginalized are somehow always to blame because they can’t see and force everyone to comply equally.

Creating a law meant to create more equality but not including a substantive way of enforcing it says a lot about how unimportant that equality really is.

The real problem with drive-by lawsuits is not that they happen but that we live in a world that makes them so easy and in some ways necessary to create accessible spaces.

I only wish Anderson Cooper and 60 Minutes had considered that before airing that segment.

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9 responses to “The Real Problem with “Drive-By Lawsuits”

  1. I keep wishing we had an ADA marshal the way we have a fire marshal. Everyone knows what they need to do to get their business up to fire code. Guidelines are not secret. Everyone knows the fire marshal will come around periodically to make sure it is up to code. No one has to sue to bring a building up to fire code because the marshal is empowered to issue citations. ADA code is not a secret either but people sure act surprised about it.

    Heck, instead of an ADA marshal, maybe the fire marshal should just check for ADA code at the same time. Or the health department.

    I took a disability law course in college in 1998 and I remember the teacher saying “there is no ADA police. We are all the ADA police.” Personally, 26 years later, I think it’s time for ADA police.

    (I watched the 60 minutes segment by the way. There is surprisingly not a hole in my television set.)

    Liked by 3 people

    • Well, current ada compliance and fire safety standards mandate pain and strobe weapons, as alarms.

      I have a pain sensitivity (severe hyperacusis) and a strobe sensitivity (don’t know the details, but flashing lights such as turn signals blind me, unbalance me, sometimes cause me to stumble into the street, sometimes trigger my migraines, and sometimes trigger vomiting, but it’s not photosensitive epilepsy).

      I don’t know what to do, but a one-size-fits all standard will continue to treat people like me as acceptable collateral damage.

      Like

      • I have fire alarm problems too, with both the strobe and the sound causing considerable disorientation. I certainly don’t think the ADA requirements around fire alarms are great.

        I was more using the analogy that a building could be inspected periodically by someone for accessibility and that agency would have the authority to issue warnings, fines, citations or whatever, and then follow-up to ensure appropriate changes were made. I don’t like the idea of “notification periods” where a disabled person has to notify the business about access violations before bringing suit. But if there were required periodic inspections, that agency could give a time frame to make changes (and assistance with needed changes) before levying fines.

        Liked by 1 person

  2. Pingback: HEY! YOU! MEDIA! Top 5 Notes to Anderson Cooper Regarding His 60 Minutes Hit Piece That I Shot B-Roll For Once Upon a Time When It Was Going To Be About the ADA’s 25th | Tales From the Crip

  3. For 60 minutes to fully understand the issues people with disabilities face, please look at your own captioning. See: https://janiceslintz.files.wordpress.com/2015/05/multichannelviewpt-72913.pdf

    As the person who oversees captions for CBS will tell you, I filed numerous complaints and met with FCC Commissioners in DC over the poor quality captions offered by 60 Minutes. Rather than correct them, 60 Minutes ignored the issues. NBC did remedy their issues. See: http://www.huffingtonpost.com/janice-s-lintz/thank-you-donald-trump-fr_b_7724758.html

    Rectifying the captions for people who are deaf or hard of hearing can either be seen as a pain or wonderful depending on your perspective. So, if 60 Minutes wants to understand the challenges to fix access issues, you only have to look at your own show…

    Janice Schacter Lintz, CEO/Founder, Hearing Access & Innovations

    Liked by 1 person

  4. I think what business owners miss is just how much the ADA accommodations can help everyone. Don’t bitch about having to put in a ramp–the UPS guy is going to love it, and so will you when you have to move furniture in or out. Don’t gripe about having to have slightly wider aisles, or a wider bathroom door: that is going to make it more comfortable for everyone, and make for a more pleasant shopping experience.

    And then there’s the issue of money. I go to Costco in part because they have wide aisles, electric carts, and in a pinch I can hand a personal shopper my list, they’ll shop it for me, and all I have to mess with is the checkout. I’d rather use the electric cart, but they only have so many. The last time I walked Costco from front to back I nearly threw up in the checkout line. Why do they care? Because I spend easily $500 per month at Costco, probably more, as we’re getting most of our protein and convenience foods there, as well as gasoline and kids’ clothes.

    Trader Joes started out AWFUL in my town. I didn’t even figure out that they had an electric cart because they kept it in the back. Then when I started needing it during a pregnancy, after about six times of me asking an employee to walk back and get it and then telling management they needed to put it at the front of the store, they finally did it. But they would do things like completely boxing it in with 2 buck Chuck and keeping the key at the manager’s desk. I think on that one I finally went to corporate, and there was one more incident and I told them I was on the verge of not coming back, and the next thing I know they’ve got a specific spot for it at the front of the store, with a hook for the key on the wall and NOTHING stored around it. And sometimes I have to sit in my car for a few minutes to wait for the cart, but that’s okay because it’s getting used by more than just me. (and I go 2-4 times per month and spend up to a hundred and fifty each time because we’ve got a large family, so they WANT me to be happy.)

    Market of Choice had these awful POS POS’es, that couldn’t tip to be seen, and I wrote corporate about them and they changed it, and now they’re the easiest in town.

    The stores that don’t respond well don’t get my business. I spend a lot on food every month. The stores that are ADA compliant get more of my business. The ones that make it easy and not exhausting for me to shop, I shop at.

    But I keep speaking up. Used to only have one handicapped spot at TJ’s, and barely any parking near the door. Now they have two, plus about 15 spots near the door. I spoke up about issues and so when they remodeled they took those things into account. It’s a MUCH nicer place to shop now. It looks better. It’s much easier to run in and get a few things.

    Right now the people who have money are often older, and the old we get the harder it is to get around. Businesses REALLY need to think about the fact that ADA compliance isn’t just money out the door. It’s customers coming in the door, as well.

    When there is no near parking, no easy way in, narrow aisles, no electric cart… my shopping trips are rare and small. I’m likely to order something from amazon even if it costs a little more because the energy drain isn’t worth it. There are businesses that make things easy on me that get tens of thousands of my dollars over my life as a customer. The businesses that don’t… don’t.

    Like

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