Guest Blog: Lawsuits & the ADA
Ken Carden
Carden Law Office
January 27, 2016
The Americans with Disabilities Act (ADA) was passed July 26, 1990. I’m a lawyer, I use a wheelchair, and I practice ADA law. When it was passed and people first began bringing me complaints, I thought I’ll do this for a while – perhaps four to five years – before folks fully understood the ADA’s requirements and “got it right." But in the over 25 years since, new construction is still being built without any regard for the ADA’s accessibility guidelines, and folks who own existing facilities have made little or no effort to remove the barriers that keep the disabled out.
The problem here is that most individuals with disabilities simply don’t complain and the activists that do are being tarred with a very broad brush. We often hear people criticized for filing an ADA lawsuit, but I guarantee that if there were signs posted in a window that said "NO DISABLED ALLOWED,” suits brought against that business wouldn't be painted as frivolous! But let’s be clear – if you don’t have room to get your wheelchair out of your car, or there’s not a wheelchair accessible pathway to the front door of a business, the effect is exactly the same as a discriminatory sign.
I understand that someone who has never used a wheelchair could look at a complaint and wonder why the person is making it. It looks minor. I even had a defense expert testify in deposition once that, “most people could use it” and that “it doesn’t keep many people out.” But I guarantee that if that expert used a wheelchair for even one day and tried to do the things many wheelchair users do every day and don’t even think about, he wouldn’t use that reasoning again.
What would you have the disabled do when faced with no accessible parking? Or if they were to park, but were unable to navigate a curb or steps to the front door? I used to ask my clients to write letters to the owners of existing facilities on the theory that even if they have done little or nothing in 25 years, if you can get voluntary compliance, that’s one more place that is accessible. It’s not required by the ADA, but it’s one less place you have to sue. But quite frankly, I have found that in most instances, it simply makes no difference. Sometimes, nothing happens until suit or the threat of suit is brought. It’s like going 90 mph down a freeway – if I’m stopped, I don’t expect a warning ticket. So why is it that 25 years after the ADA was passed, brand new developments are still being built with either no or only token compliance with the Act? And why do we find today existing facilities that don’t even have accesible parking spots, entrances, and restrooms?
The Americans with Disabilities Act was passed more than 25 years ago. Instead of asking, “why do people sue?” we should ask, “why should they have to?"
About Ken:
Ken Carden is a disability civil rights attorney (left, with CTD's Dennis Borel). He served on CTD's Board of Directors from 2002 to 2012.
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