By John D. McMickle, co-founder of North South Government Strategies, a Washington, DC-based consulting firm. He was previously a Judiciary Committee Counsel for Senator Charles Grassley and a Partner with Winston & Strawn, LLP.

The Americans with Disabilities Act (ADA), signed by President George H.W. Bush in 1990, has the laudable purpose of providing “a clear and comprehensive national mandate” to promote access to public accommodations for the disabled by providing “clear, strong, consistent, enforceable standards.”  On the law’s twenty-fifth anniversary, Attorney General Loretta Lynch observed “the Americans with Disabilities Act has proved to be a revolutionary tool for improving the lives of Americans with disabilities.”1  Just this past June, President Donald J. Trump issued a Proclamation that credited the ADA with helping “people of all ages with disabilities … to thrive in the community, pursue careers, contribute to our economy, and fully participate in American society.”2

The ADA is currently the subject of controversy over whether it regulates not only physical places, but virtual ones as well.  Substantial confusion currently prevails on this question.  This paper will explain how the confusion has spawned a cottage industry of private litigation under the ADA that neither furthers the policy objective of increased access for the disabled nor provides clear and consistent standards for stakeholders, including businesses.  The paper concludes that the best chance for definitive, national guidance lies not with the courts or with the law’s implementing agency—the Department of Justice (DOJ)—but through legislative amendment.

For some time, commentators have argued that private enforcement of the ADA’s Title III, which imposes access requirements on places of public accommodation, has been misused.3  Congress has held hearings on abuses, and the House of Representatives passed legislation in 2017 designed to reduce vexatious litigation.4