sharkCongress passed the Americans with Disabilities Act (ADA) in 1990 to provide important protections for some of the most vulnerable Americans.  Like other federal anti-discrimination laws, the ADA included a private right of action.  And as has happened with many other laws that can be privately enforced, the ADA has seen its share of questionable lawsuits during its nearly three-decade history.

In recent years, the trickle of lawsuits has grown into a flood, with scores of actions alleging what are at best novel interpretations of the law and at worst blatantly baseless “drive-by” claims that seek a quick buck.  Thankfully, courts are increasingly skeptical of plaintiffs’ lawyers’ attempts to broaden the ADA, and elected officials in some states are pushing back against legal shakedowns of small businesses.

The ADA prevents places of public accommodation from restricting a disabled person’s ability to enjoy its goods, services, and privileges.  The statute outlines 12 finite categories of physical entities that qualify as places of “public accommodation.”  They include such places as stores, theaters, restaurants, and gyms.  Alleged discrimination that occurs anywhere outside of those categories is not actionable under the ADA.

Businesses today are well aware of the 27-year old law and are quite cognizant of the negative publicity one can attract for not being in compliance.  Therefore, plaintiffs’ lawyers have been forced to target smaller entities and also concoct broad interpretations of the law when suing larger businesses.  Two recent court cases reflect the challenges lawyers face when attempting to expand the ADA’s reach.  In Gil v. Winn Dixie Stores, Inc. and Magee v. Coca-Cola Refreshments, the plaintiffs sued for alleged ADA violations related to unorthodox places: a company’s website and vending machines.

The plaintiff in Gil, a visually impaired man, alleged that Winn-Dixie’s website discriminated against him because the site was incompatible with his computer’s webpage-reading program; he therefore was unable to access any of the information available to non-visually impaired visitors to the site. He argued that the website itself is a public accommodation, or in the alternative, his inability to navigate the page formed a barrier to his patronage of Winn-Dixie’s brink-and-mortar stores and thus violated the ADA.

A district court in Florida held that, whether or not a website is a public accommodation, Winn-Dixie’s site offered services that the plaintiff could not enjoy (like printing off coupons and identifying the locations of physical stores) because of his disability.  Therefore, Winn-Dixie’s website violated the ADA.  But the opinion fails to wrestle with the fact that the plaintiff’s inability to use Winn-Dixie’s website did not affect his ability to shop at Winn-Dixie’s physical stores.  To the contrary, the facts demonstrated that the plaintiff in Gil successfully shopped at Winn-Dixie’s physical stores for over 15 years without using their website; he voluntarily stopped shopping several years before he learned about its website.

Worse, the district court misapplied U.S. Court of Appeals for the Eleventh Circuit precedent.  That circuit has held that for a website like Winn-Dixie’s to violate the ADA, a user’s inability to access the site must create a barrier to use of the physical stores.  Because the plaintiff failed to show that he was unable to shop at Winn-Dixie or fill his prescriptions there because he couldn’t use its website, the district court should have dismissed his lawsuit.  Instead, it granted him relief and his attorneys their fees.  The case is now pending appeal before the Eleventh Circuit.

In Magee, the visually-impaired plaintiff alleged that Coca-Cola’s vending machines discriminated against him in violation of the ADA because the machines’ purchasing interface was entirely visual.  As in Gil, the case turned on how expansive the courts were willing to read “public accommodation;” the plaintiff could only prevail if he could establish that the vending machines were public accommodations under the ADA. The district court dismissed the plaintiff’s lawsuit, holding that the vending machines were not public accommodations.

The Fifth Circuit affirmed, focusing its analysis on ADA’s statutory language.  The plaintiff invoked language in the statute that defined a public accommodation as a “sales … establishment.”  But, as the circuit court noted, that phrase appears as a catch-all example in a list of physical stores: “a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment.”  The court held that the statute’s plain meaning did not include vending machines in the definition of “public accommodation” because “a vending machine is not akin to any of the listed examples.

Indeed, rather than falling within any of those broad categories of entities, vending machines are essentially always found inside those entities along with the other goods and services that they provide.”  Therefore the Fifth Circuit affirmed the district court’s dismissal, and the U.S. Supreme Court denied the plaintiff’s cert petition last month.

In addition to the courts that have rightly refused to warp the ADA’s statutory structure and expand its liability, some state governments have begun to take action to protect businesses from “malicious ADA litigation.”  Florida is one state whose businesses have been especially beset by suspect ADA lawsuits.  Governor Rick Scott recently signed a law under which property owners can seek ADA compliance certification and those out of compliance can file a remediation plan with the state.  Such preventative measures could help businesses stave off lawyers trolling for settlements in the Sunshine State.

Further, Nevada Attorney General Adam Laxalt has successfully intervened in an ADA suit filed in the District of Nevada as part of his fight against abusive disabilities litigation.  Recently, one attorney filed nearly 300 identical complaints against businesses, forcing several to settle for upwards of $7,500 each.

Congress passed the ADA with the intention of making more businesses and other places of public accommodation equally accessible, not to facilitate new revenue opportunities for America’s litigation industry.  A number of factors, including the law’s broad language, the lack of any implementing regulations, and businesses’ justifiable fear of public shaming, have unfortunately combined to do just that.  Lawsuits that use the ADA as a cudgel to beat property owners benefit the lawyers while tarnishing the law and disability-rights advocates.

Courts should continue to resist demands to adopt adventurous interpretations of the ADA, while state officials should follow the lead of their colleagues in Florida and Nevada to safeguard businesses from frivolous suits.

Also published by on WLF’s contributor page.