The Americans with Disabilities Act
Then and Now
The Americans with Disabilities Act (ADA) became law in 1990. It is a civil rights law that prohibits discrimination against individuals in areas of public life, including jobs, transportation, schools, and most private and public places open to the public. The ADA has been amended over the years and this article provides an overview of the ADA, the proof that must be met to bring an action, and how it continues to evolve.
The Americans with Disability Act (ADA) turned 30 last year. In July 1990, President George H.W. Bush signed the historic civil rights legislation. Although the movement to create the act was spurred on with the overall civil rights movement of the 1960s, discrimination against individuals with disabilities goes back to the earliest days of civilization.
Even though the Bible talks about compassion for those with disabilities, individuals who have disabilities have suffered since the beginning of time. By the 19th century, institutions were established for people who were blind, deaf, or mentally ill. Laws were enacted that prohibited marriage and forced sterilization were commonplace. Even into the 1970s some American cities had laws that prohibited people with physical deformities from being seen in public.
In 1968 one of the earliest laws that helped people with disabilities prohibited architectural barriers in all federal buildings. Then in the 1970s, came a series of laws that required wheelchair lifts on buses and a law that required providing free public education for children with disabilities. Finally, in the late 1980s, airlines had to accommodate people with disabilities and the Fair Housing Act prohibited discriminating against people with disabilities. In 2008 the definition of disability was expanded and the Americans with Disabilities Act Amendments Act (ADAAA) went into effect January 1, 2009.
Five aspects of disability discrimination are addressed in the ADA:
Title I addresses issues related to employment and applies to companies with at least 15 employees.
Title II covers governmental entities and requires that all their services and activities be accessible including bus, rail, and other modes of transportation.
Title III involves public accommodations and services by private companies, such as: hotels, restaurants, stores, healthcare providers, theaters, sports facilities, and related businesses.
Title IV covers the telecommunication industry, including phone and Internet.
Title V addresses additional issues including immunity, attorney fees, and related matters.
Types of Cases and Trends
There are three elements that must be met to support an ADA claim: 1) the person must have a disability that is recognized under the ADA; 2) the discrimination occurred to a customer, client, employee or member of the public; 3) and the person was denied full access or equal treatment.
Initially, cases involved businesses that did not have easy to open doors, banks without lower counters for customers in wheelchairs, or other basic accommodations. Accessibility issues involving hotels have been ongoing and increasing. Cases involving companies failing to accommodate their employees are also on the rise.
Over these past 31 years, there has been a shift and in 2019, there were historic numbers of cases involving communication issues, especially with website and mobile apps. In addition, related cases involved governmental entities and hospitals not providing effective ways for people with disabilities to communicate. Many cases involve lack of access to physical space managed by governmental entities, such as parks, drinking fountains, and parking.
Now, there is a trend towards resort properties that are condominiums, which are only managed by hotel chains. Members of the public think they are booking at a hotel, since often a hotel name is associated with the resort’s name and the facility has all the amenities of a hotel: lobby check-in, rooms are cleaned and linens changed on a regular basis, etc. These entities are resisting ADA accommodation requirements, saying the units are individually owned, so are not covered.
Another new issue is requesting that gift cards be in Braille. Other new types of cases involve litigation over the fact that hotel websites do not identify which rooms are ADA accessible or what amenities they provide. In 2021, Uber unsuccessfully tried to get a case before the District of Columbia Court dismissed that involved its failure to provide ride access for those with non-foldable wheelchairs.
Typically, when cases are litigated, the disabled person appears to win about 50 percent of the time, while when cases are mediated, the settlement rate increases to over 75 percent. Settlements range from a defendant fixing the deficiency to, not only correcting the ADA violation, but also paying substantial damages.
On average, litigated Title I ADA cases involving one individual settle for $50,000. In some cases, there are caps on damages. For example, the cap for ADA cases involving a company with 15 to 100 employees is $50,000, and for companies with 201 to 500 employees it is $300,000. Cases typically take a year or more if litigated; however, due to COVID-19, courts are taking much longer to establish a trial date. It is important to note that most ADA lawsuits settle before trial. Cases opting for mediation are typically resolved in much less time, and unlike litigation, settlement and compensation amounts are voluntary. Another major benefit is that unlike litigated decisions, mediation settlements are confidential.
Not long after the ADA went into effect, the Department of Justice (DOJ) established a mediation program with no cost to the participants. This program primarily handles cases that involve Title II and III issues. The Key Bridge Foundation manages the mediation program for the DOJ and members of its mediation panel are trained and experienced with handling ADA issues. The DOJ has referred 7,000 cases to the Key Bridge foundation, which maintains a 78 percent settlement rate.
Litigation not only costs more than mediation, but also takes more time. Most mediations involve one individual; however, more litigated ADA cases are becoming class action and so the final judgments are higher. Costs of litigation are often greater than most people anticipate. Correcting ADA violations and potentially having to pay additional compensation includes many factors: damage to a reputation; legal costs, which include inside and outside counsel; experts; court, mediation, or arbitration costs; expenses associated with correcting the ADA deficiency, including training of staff; experiencing copycat lawsuitsâ€”the list goes on.
For many Title I ADA cases, the Equal Employment Opportunity Commission (EEOC) files suit on behalf of impacted employees. In 2009, Sears paid $6.2 million into a fund for hundreds of former employees, who were not accommodated under ADA requirements. Still, in one of the largest cases brought by the EEOC, the plaintiffs received a jury verdict of $240 million from Hill County Farms, Inc. One of the larger Title I cases involved a single individual employee and settled for $950,000 during the trial. In another Title I class action lawsuits, Verizon not only paid $20 million to current and former employees, but also had to correct its policies and train employees.
Surprisingly, cases involving fundamental accommodations continue years after the ADA went into effect. Because of Title II accessibility issues associated with polling places in St. Louis during the 2020 presidential election, this year the city settled an ADA case and has agreed to make changes to accommodate individuals with mobility and vision disabilities. In another Title II case, in February of this year, 500,000 plaintiffs in a class action lawsuit prevailed against New York City because only 20 percent of its MTA stations were accessible.
In 2001, the U.S. Supreme Court ruled in a Title III case that the PGA needed to allow a person with a disability to use a golf cart. In another Title III case, it was found that foreign cruise lines, operating in U.S. waters, must follow the ADA requirements. Amtrak had been given 20 years to correct problems with inaccessible stations, but it failed to do so. In 2020, Amtrak settled an ADA case by agreeing to make the required corrections and it paid $2.25 million in damages.
When representing clients in ADA cases, attorneys and experts need to think about three key factors: 1) qualification, 2) cost, and 3) resolution process. Does the potential case meet the three-element test as a valid claim? Do the overall costs of litigation, including potentially having to correct the ADA violations and a variety of damage assessments, exceed what could be expected from a court? Would it be prudent to consider alternatives to litigation, using mediation or other dispute resolution processes, if time, expense, and confidentiality are important considerations?
 Pangrazio, P., A Brief History of Disability Rights & the Americans with Disabilities Act, Livability Magazine, July 2015.
 Private transportation companies, such as taxicabs, ride sharing companies, shuttle buses (airport and hotel), are covered in Title III.
 EEOC v. Sears Holdings Corporation, 2009.
 EEOC v. Hill Country Farms, Inc., 2013.
 Verizon had systematically disciplined or fired employees with disabilities. EEOC v. Verizon Communications, 2011.
 Department of Justice v. Board of Election Commissioners, St. Louis, Missouri, 2021.
 A New York State Supreme Court judge ruled in favor of 500,000 plaintiffs’ claim against the Metropolitan Transit Authority, 2021.
 PGA Tour, Inc. v. Martin. 2001.
 Spector v. Norwegian Cruise Line Ltd. 2005.
 Department of Justice v. The National Railroad Passenger Corp. (Amtrak), 2020.
TES founder, Nancy Neal Yeend, has served as a mediator for over 30 years, and her mediation practice focuses on helping businesses resolve disputes from pre-litigation thru trial and even at the appellate level. In addition, she mediates ADA cases that emanate from the DOJ for the Key Bridge Foundation.
During her career, she often reflected on “What if they had done ‘X’ then could the conflict have been avoided?” The answer is a resounding “yes”! An ounce of prevention is worth a pound of cure! Research demonstrates that preventing conflict has huge benefits to businesses. Controversies and conflict cause stress, and people working in stressful situations are more likely to develop significant health issues: heart disease, stroke, diabetes and even cancer.
Reducing and preventing stress has multiple benefits: productivity increases, and absenteeism is reduced, which in turn helps reduce healthcare costs. These factors significantly impact an organization’s bottom line. Our name, The End Strategy, evolved from the desire to tell people, up front, what TES does. The End Strategy says it allâ€”TES helps put an end to business related conflict. There is also a historical footnote: the founder’s last name, Yeend, mean “the end” in old English!
Ms. Yeend can be contacted at (503) 481-2986 or by e-mail to Nancy@TESresults.com.