The ADA=Legitimate Protection or Lawyer's meal Ticket?

I saw Clint Eastwood this AM, talking about the effect of the Americans With Disabilities Act-which just about ruined his hotel business in Carmel, CA. Seems a disabled woman tried to book a room last year-was told by some (unknown) staff member that the hotel didn’t have wheelchair access-so now she is suing-of course, the lawyer indicated they would drop the suit in return for a cash settlement. Eastwood, to his credit, is fighting this-but it will cost him a ton of money. he is in Washington this week-trying to get some needed modifications to this insane law-of course-the legal predators are out in force,claiming that the big bad businesses are out to gut this law. My question-has this act actually helped the disabled-or is it a lawyer’s employment act?
Also, who pays for these legal groups to lobby-is it the ABA again?
I guess in a few years, we will all be owned the the legal industry-you won’t be able to run a business without employing a legal consultant!

Well lets see…I broke my ankle and was in a cast with crutches and a wheelchair for three months a couple of years back. I got so depressed I almost had to go on medication. Very hard to give up your independance when you’ve had it so long. Also very damned hard to get into a business without an access ramp. Does this law help handicapped people…I would give that a big old yes.

Need2know

Well, my humble opinion is that when it comes to problems such as this, a citizen has a right to lodge a complaint with the government agency (local or federal) responsible for enforcing things such as accessibility to the handicapped, and that the agency is to - within a reasonable time - make sure that the companies are up to speed, or fined an appropriate amount to discourage non-compliance.

Civil suits? No, thanks, unless there is damage as a result of this. For example, there are health codes in restaurants that business must maintain. Those who do not can get fined. Now, if I eat somewhere which is not up to speed and I get food poisoning from this and have to go to the hospital, I am within my right to sue. However, I do not have the right to go into the kitchen with a thermometer to see that all temperatures are within health codes, and if I find some problems to sue them for it.


Yer pal,
Satan

I HAVE BEEN SMOKE-FREE FOR:
One month, one week, two days, 12 hours, 25 minutes and 1 second.
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Ah, another lawyer bashing rant that, as usual, starts with next to no facts, leaps to unwarranted assumptions, makes accusations that are unsupportable, and commits the cardinal error of assuming that all attorneys are on the same side (i.e.: making money).

Let us add some facts to the issue. For reference, and to forestall assertions that, as an attorney, I am simply a flack for the money-seekers, I spent 10 years representing employers in work-related cases, including advising them on ADA claims. I am hardly a friend of the side advocating expansive interpretation of the ADA.
First of all, the Americans With Disabilities Act (1990) is hardly the monumentally new legislation claimed. Most of the Act’s provisions existed in other laws on the books, with less wide application (e.g.: the Rehabilitation Act of 1973, the California Fair Employment and Housing Act, etc.). Almost all the definitions and required behaviours have been applicable to various employers and businesses for over 25 years. All the ADA did was extend the scope of the provisions in the Rehabilitation Act of 1973 to most all businesses and employers already affected by such legislation as the Civil Rights Act of 1964 and the Age Discrimination in Employment Act. Is this a significant extension of the law’s application? Yes. Is it revolutionary new law? No.

Secondly, Eastwood shouldn’t be fighting it, he should be doing what responsible business owners are doing: determining the extent to which retrofitting his business to handle common disabilities can be done without ‘undue hardship’ to his business. He should then be accomplishing this. He shouldn’t have to wait for some person in a wheelchair to sue him under the act to make that determination. He’s had 10 years to do that.

Now, the question of whether virtually every business in America should be forced to accomodate those with disabilities is a totally different question. Address it to your legislators, who were quite willing to jump on the bandwagon as it rolled through. Even in 1973 when the Rehabilitation Act passed, the only objection from the Nixon administration was the cost of federal rehabilitation programs. It was President Bush who signed the ADA into law, quite pleased to do so.

Does the Act work? Actually, in the main, yes, though there are, as with all legislation, aberrations. I found it extremely silly that the USSC would allow airlines to continue to exclude pilots who wear glasses on the theory that the Act didn’t apply to anyone who can correct their disability with eyeglasses; if the disability is truly corrected, there is no need to ban them; if the airlines feel eyeglass correction is still less than what they need, the disability isn’t completely remedied by the eyeglasses. By the same token, the attempts in some cities to force theater owners to supply seats of ‘similar quality’ to wheelchair bound people (that is, middle level, center of row), rather than seats at the ends of rows or in front or back, to be a bit of a stretch. Still, all in all, slowly but surely the Act is forcing governments and businesses to address common hinderances to normal activities in the daily life of those who are, usually by no fault of their own, disabled in some way. Hell, even here in Toledo, the threat of an ADA suit finally forced the local officials to schedule the placement of curb cuts at intersections, so the wheelchair users aren’t forced into the streets to be able to get around.

As for attorneys and lobbying, etc.: I suggest you identify first of all who is lobbying; there are many organizations of attorneys. I would expect any group of attorneys who represents disabled people to lobby in favor of continuing protection for the disabled. After all, those are their clients, for goodness sake. Doubtless there are plenty of employer-side and business-side attorney groups lobbying the other way. Having been through several attempts to rationalize California’s workers’ compensation system, I can assure you the attorneys are hardly united on the issues.

Finally, as to the idea that the plaintiff in the Eastwood case is just out for money; I always hesitate to take the word of one side about legal negotiations, especially when the spokesman is one of the litigants; they tend to be biased (understandably) and also completely unaware of the legalities involved (Clint is a fine actor, a semi-decent mayor, and at times dumb as a brick). Wait to see what ends up happening when all is said and done; routinely business clients such as I had ask “How Much?” to settle a claim in order to avoid making the changes necessary to avoid future claims of the same type.

I deal with this issue every day. I have handled the ADA suits as an adjuster, a consultant and as a risk manager.

The problem with the ADA is that its intentionwas very noble. Access to public places and the right to do a job were good ideas.

The problem is that humans are avaricious and greedy. A vast majority of the ADA claims that I see (100:1) are an adjunct to a workers comp claim or a termination for cause. Workers’ comp attorneys learned quickly that they could get a quick $3,000 extra if they simply claimed an ADA claim after their client was unable to go back to his old job because of a work related injury.

Similarly, anyone with a disability who was fired for incompetence could strike back. Some are simply vengeful suits. Others are downright ridiculous. I Once had a woman fired because she couldn’t maintain her spreadsheets sue claiming that they could have hired another worker to help her do her math.

The result is that ADA made it very hard to fire anyone with a disability, or to not hire them. It also creates a greater number of frivolous suits.

Thumbs up on the access. Thumbs down on the employment aspects.

For characterizing my post as a “rant”; it was fully intended to be!
Thanks to your legal training, you produced a whole lot of verbiage without ever answering the original question!
First, the facts (which you say I ignore; but you never mentioned):
-the plaintiff COULD NOT IDENTIFY the hotel worker who ALLEGEDLY told said plaintiff, that the hotel had no wheelchair access (kinda changes things a bit, “ESQ”-doesn’t it?
-the hotel WAS IN FULL COMPLIANCE with all applicable California and Federal laws, at the time the lawsuit was brought
-If this poor soul was so bothered about the issue, why didn’t she volunteer any settlement to a charity?
I submit that my original “rant” was correct-what ADA does is:
(1) open up VAST new areas for litigation
(2) cost businesses a TON of money
(3) guarantee employment for generations of lawyers to come

I watched Clint this morning while at the gym, so perhaps we watched the same morning show. Anyway, I don’t remember him showing any proof that his hotel was in full compliance with the law. His assertion that it was doesn’t prove anything. Actually, although I was only passively watching, Eastwood seemed to imply that renovations were being done at the time. Reading between the lines, I presumed that the bathroom was out of order because of the renovations.

Either way, and perhaps I’m naïve, it seems very unlikely that the plaintiff would win any suit if there were no violation to the law. Why would she pursue the case if it was destined for failure?

Call me a bleeding heart liberal, call me an idiot whatever…seems to me like this thread is going to turn out very similar to the “Do we owe the Indidans” and “Racial Scholarships” threads…There is going to be large segment of SDMB posters who will insist on pressing the “survival of the fittest” perspective. Let’s just hope none of them turn out to have an African or Mexican in their ancestry, or they ever find themselves lame, deaf, or blind.

Needs2know

Need, I don’t think that anybody would argue that the ADA was intended to be good for the disabled. THe problem is the reality of its application. It is the type of vage, goodhearted law that badhearted people can easily abuse.

Teh road to hell is paved with good intentions.

egkelly:

Provide authority for your assertion that the hotel was in compliance with the ADA at the time of the lawsuit.
Clint saying it was is irrelevant; that’s the point to the lawsuit, don’t you think?
As for the issue of not remembering, what does it MATTER? The issue isn’t what the person was told, the issue is whether the room could or could not be used by a person in a wheelchair. Worrying about who said so is a classic example of none lawyers (apparently including yourself) worrying about irrelevant issues.
As for donating the result of the suit, why should the plaintiff do so? After all, the point to damages is that the person has been DAMAGED. You might not think so, and indeed the jury might end up disagreeing depending on the facts. But IF damages are awarded, it is because the plaintiff suffered harm. Why should they plaintiff give up an award to compensate for that harm?
Your assertions about the litigation under ADA are without merit, and I note they are without any evidence in support. Is there added litigation from the ADA? Yes, of course. It was INTENDED there would be some; after all, no one expected businesses (notoriously cheap when it comes to spending on things that don’t improve the bottom line) to just start ponying up money for improvements without some legal prodding. It does not to date cost business that much money; indeed, most federal circuits are taking very narrow views of the scope of the law, both as to who fits the definition of handicapped and as to what modifications are considered to be undue hardship; in California a large number of the plaintiff attorneys I dealt with preferred to make claims in state court under the California FEHA (which has been in place for 25 years and reads identically to the ADA) because the state courts were more sympathetic. As for guaranteeing employment for generations of lawyers to come, I won’t even bother. Attorneys are a fact of life; every one of them has a NON attorney for a client. The employer of more attorneys than any other segment of society is big business; usually for the purpose of litigating against other big buisiness. Get over it.
As for the other posts:

Mr. Zambezi, I agree that the ADA became a tool for workers’ compensation attorneys. Having represented employers for years, I can attest the vast majority of such claims come about because employers hate re-employing injured workers, and often grouse about the costs of vocational rehabilitation. It is one of the intended results of the ADA that an employer can’t just shed the worker whose industrial injury forces some job modification to allow him or her to continue working; this is anathema to employers who always prefer to employ the most efficient means of completing a job. But you don’t earn an extra $3,000 for making such a claim, at least not in CA. You did increase your chance of getting a reasonable plan for voc. rehab. if that was your concern. But your point about who actually files cases under the ADA is instructive; in the main, there are very few actual suits filed in federal court over the ADA.

As to the ideas offered by Satan, as I look around expecting to see an offer for my soul (maybe he thinks it’s already locked up because of my vocation :wink: ), I would note that all major efforts to force an end to discrimination have included the right to private suits in one form or another. This started out being something you could do only after the responsible federal agency failed to help you out; you went to the agency and got a right to sue letter, which basically said: we can’t deal with this in an adequate time, so you can go do it yourself. Shortly after this idea was created, the federal agencies got swamped with the workload (you gotta love bureaucracy), and issuance of right to sue letters became SOP after the mandatory waiting period. Frankly, all that sort of thing does any more is cause a delay in addressing the underlying issue.

I will note that while I would like to agree with zero about the unlikeliness of a meritless suit, frankly there are enough attorneys around who make a living off meritless suits that you can’t always make that assumption. They carry large case loads and use quick turnover to justify the cost of striking out now and again. Hey, there are bad garbage men, too, ya know. (sigh)

Finally, though I hate arguing by offering specific examples of actual situations, I will offer the following story to show how ADA can have a positive effect. Locally, the City of Toledo has been considerably deficient in retrofitting intersections with curb cuts, especially in the less affluent sections of the city; the neighboring city of Oregon is just as bad. Mind you, this isn’t a budgeting problem, just lack of incentive. As a result, a woman who lives on the east side of town, and uses a motorized wheelchair, is forced to run her wheelchair in the streets. She has been cited three or four times by local police for improperly driving her wheelchair in the streets. Despite her own complaints to the two cities, no progress was made on installing curb cuts in the area; instead, she kept on getting cited. Finally, a local attorney group that represents the disabled at little or no cost threatened to file ADA suits to force compliance. Amazlingly, the cities managed to find some reason to begin installing curb cuts, and soon she will be able to navigate the city without running the risk of being hit by a car from driving her chair in the streets. Ain’t it nice when things work like they are intended? :slight_smile:

I spent all night thinking about this, bugged by something in the original post and the later post by egkelly. A suit under Title III of the ADA (Public Accomodations) doesn’t ALLOW damages to be collected, if I recall correctly. U.S.C Title 42, Section 12188 allows for enforcement actions by private parties as set forth in Section 2000a-3(a) of Title 42 (Civil Rights Act), which allows:

Now, under Section 12188 (1) (B), the Attorney General is allowed to intervene or institute suit if there is a pattern or practice of discrimination, or if there is a discrimination that raises an issue of “general public importance”. In such cases, subsection (2) (B) allows the court to award damages to the aggrieved persons upon application by the Attorney General. Clearly, that isn’t happenning here.

Bottom line: Whatever the plaintiff in Clint’s cases is after, it ain’t damages. Likely, it is an order to fix the place up so it is accessible to wheel chairs. Not quite sure what Clint’s beef is.

SO much for the idea of businesses paying tons of money…

This post is getting off the original topic. The question I posed was: is the social benefit of the ADA worth the cost of the litigation incident to its implementation?
Congress passes a law with good intentions (the ADA) this law is intended to improve the lives of people who are handicapped in some way. As was pointed out, it is a great benefit to people who use wheelchairs, to be able to negotiate the sidewalks by themselves. This is a good thing-nobody disputes this at all.
However, the cost of the law is considerable-streets and buildings have to be modified, and lawyers have to be paid (not an unreasonable assumption). The question is: is it worth it? At what point does the cost exceed the benefits? Did Congress ever assess the costs vs. benefits of this act?
As an example: a wheelchair-capable bus (lifting platform, extra area) costs on the order of $120,000.00 to buy, and there are added costs of operation. Suppose such a bus is used by 10 people/year – would it not be cheaper for the city to simply provide taxicab service for this small number?
And, as you might imagine, I am concerned about the cost of litigation, which in the main is carried by the taxpayers (owners of businesses tack these costs on to the price of their services).
I am simply UNAWARE of any hard analysis that Congress or any one else has done on this.

I will first note that your initial post, egkelly, was acknowledged by you to be a rant against the perceived costs of the system, driven in your opinion by attorneys trying to milk businesses.

Nevertheless, let’s address your saner question.
Congress engaged in extensive hearings on the issues raised by the ADA prior to its passage. As you might guess, the committees involved were worried, inter alia, about the cost to business of retrofitting to meet the needs of the disabled. I note in one of my texts on the ADA that there was considerable testimony and evidence provided by the National Federation of Independent Businesses, a group that promotes the interests of smaller businesses. John J. Motley, III, the then president of the NFIB, is quoted as raising the spectre of a ‘parade of attorneys and lawsuits’ as a result of the ambiguous language in the proposed legislation, leading to unknown costs for businesses. His group was especially worried about retrofit costs, providing sample costs for such things as curb cuts, ramps, automatic doors, etc. (see The Americans With Disabilities Act: Hearings on H.R. 2273 Before the Comm. on the Judiciary and the Subcomm. on Civil and Constitutional Rights, 101st Cong., 1st Sess. at 86 (1989)). In addition, as noted by Congress in the findings contained in Section 12101 of Title 42, there was a substantial social impact on society resulting from the inability of the disabled to participate normally in society.
So, in answer to your questions, yes, Congress considered the issues thouroughly. There was ample evidence of the potential cost to business both as a whole, and broken down among Title I (employers), Title II (public transport), and Title III (public accomodations). It took Congress parts of two years to put the whole thing together, and substantial modifications to the proposed law occured during the course of its investigation; in addition, the EEOC was directed to publish guidelines to help businesses understand better what the limits of liability for corrective measures would be. As those guidelines were being formulated, even MORE evidence was offered by business on the anticipated cost.
Now, is the ADA a good thing or a bad thing? That is something each individual person will have different opinions on. As you will recall, in my first post, I directed all who questioned the need for such a law to their representatives, who jumped aboard a strongly rolling bandwagon to pass this law, signed into law by a generally business friendly Republican President. We might look back in 100 years and consider it a watershed, or we might look back and think it the dumbest thing ever done. But whatever we think about it in the future, let’s not fall for the hyperbole that it is some sort of poorly thought out, rushed, uninvestigated vehicle for lawyers to milk the businesses of America through the sympathy of society for those who are disabled.

Oh, yeah Clint…& his Ranch. He said that he has an accessible bathroom since 1988. Got to chuckle that a lawyer wants $577,000 for the suit. That is really greedy.

The person suing doesn’t get to collect anything.

The ADA according to some survey I read, is more of a hinderance for handicapped people. I have to agree with it. The law is there to make handicapped people work for their money & then they try to work for some business & its not accessible, so, they ask for access & the owners get really mad.

But I have been to the Mission Ranch many times, its very nice & they don’t need to provide 100% access, just reasonable access. Maybe the woman can’t get into the office? So the office comes to her.

Frankly, I think they are just suing Clint cause he has money. You don’t hear of them suing people who can’t pay.

DSQ said

[quote]
Mr. Zambezi, I agree that the ADA became a tool for workers’ compensation attorneys. Having represented employers for years, I can attest the vast majority of such claims come about because employers hate re-employing injured workers, and often grouse about the costs of vocational rehabilitation. {/quote]

Being an attorney, I am sure that you can apprecieate outsiders misconstruing one’s industry. THe problem is not making modifications. The problem is that when a worker leaves, business does not stop. We have to fill that position. Often, when the injured worker reaches maximum medical improvement, there is no job opening. We can’t hire them back, so they file suit. Such a suit does have nuisance value which is usually paid by the employer.

This is somewhat of a double indemnity in those states that include future lost earnings and voc rehab as a part or the work comp statute. Furthermore, if the employee is capable of finding similar work, they have no damages. They hold us hostage over the cost of defense.

Au contraire! CA has 132a which is their state form of the ADA. This is in addition to the voc rehab benefit (which carries a $16,000, 6 month cap.) We get these on about 20-30% of lost time suits in CA. The state court does hear them and the damages are capped at $15,000 IIRC. Defense costs average $10,000 to take one all the way (all out of the employer’s pocket, I might add) Cases settle for around $3,000 to avoid defence costs plus an award.

egkelly wrote:

Well, did the hotel have wheelchair access at the time?