Disability lawyers chewing at the Big Apple’s core
17 April 2012
A fascinating perspective on how a city’s architecture may be altered and shaped by aggressive rights litigation has been provided by today’s New York Times, which leads with a story entitled “Lawyers find obstacles to the disabled, then find plaintiffs“.
We are familiar in this country with the decades-old complaint that various unfortunate trends such as ambulance chasing and the litigation culture have filtered over the Atlantic, infecting English public life with defensive practices and an obsession with health and safety. Whether the blame can be laid solely at the door US culture is moot, but certainly lessons can be drawn from the unintended consequences of high-minded rights legislation as they play out across the pond, particularly where similar laws in this country – largely consolidated in the Equality Act 2010 – have yet to make their impact.
The NYT article considers the potential effect on civic relations as certain lawyers avail themselves of “New York City’s age and architectural quirkiness” as the foundation for a flood of lawsuits citing violations of the Americans With Disabilities Act. It may come as some surprise to readers in this country that most of these suits – taken against owners of delis, bagel shops and assorted small undertakings usually occupying old corner shops in the country’s crowded capital – are not led by offended disabled plaintiffs. They start instead with law firms identifying the unfortunate businesses first, then recruiting plaintiffs from advocacy and campaigning groups to pursue the case. On some occasions the same plaintiff is used several times. One wheelchair user sued nineteen businesses in sixteen months; another disabled man, veteran of 143 suits, filed as many as nine claims in a single day. As the author explains,
The plaintiffs typically collect $500 for each suit, and each plaintiff can be used several times over. The lawyers, meanwhile, make several thousands of dollars, because the civil rights law entitles them to legal fees from the noncompliant businesses.
The American disabilities legislation prohibits discrimination by private entities that are open to the public. It is not difficult to latch on to a range of features in these small businesses that technically breach the terms of the legislation; cramped shops will inevitably have high shelves that cannot be reached from a wheelchair, and aisles that are too narrow; ramps often absent and even if they are installed they may be too steep or have no handrails. To make things worse, fees for lawyers are available from the public coffers, irrespective of the remedy available to the plaintiff . The Disabilities Act awards injunctive relief only, but disabled plaintiffs are entitled to damages if they also sue under city or state human rights law.
The problem with this flood of claims is that they tend to be settled at breakneck speed by store owners, cowed by the prospect of ruinous court proceedings. The courts therefore rarely have the opportunity to rationalise and perhaps modify the effect of the laws concerned. In the US, critics (including federal judges) have suggested that lawyers specialising in this area of rights litigation are “interested in generating legal fees; they say the lawyers typically do not give the businesses a chance to remedy the problem before filing suit”. Defence attorney for some of the businesses quoted in the article is Queens lawyer Ming Hai. He does not mince his words:
All they want is money; they get the money, and they move on to the next target …It has become a profession to go out and look for a little problem here and there.
It may be that these “little problems” should be corrected by something other than the sledgehammer of federal legislation.The truth of the matter is that the “greedy lawyer” problem will not go away whilst the laws are there to be exploited. Much the same has been said of the effect of our rights legislation on local authorities; that, in effect, its impact on society is determined by febrile litigation rather than the cool authority of the legal process itself, with its adversarial checks and balances.
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Are Human Rights lawyers concerned with protecting the Human Rights of disabled people or are they concerned with eroding them? If the former, then perhaps the Human Rights blog will cover at least two things: the UK State persecution of disabled people, forcing many to kill themselves:
http://blogs.mirror.co.uk/investigations/2012/04/32-die-a-week-after-failing-in.html
And the right of disabled people to work:
http://www.hrmagazine.co.uk/hro/news/1018801/employers-ill-prepared-incapacity-benefit-review
I realise that those two things ask for more than a ‘right to die,’ so if you are a supporter of disabled people, then please show your hand.
http://ouchtoo.org/index.php?topic=2807.0
As an American who has been paraplegic for 36 years I have been so frustrated by the ADA, which does not have a central authority for resolving non-compliance issues. There is no one federal agency one can call to report a business that is still not compliant with access codes that have been written 20 years ago.
This New York Times article was poorly written, implying that the disabled are just trying to make money from businesses they don’t even patronize. Yet disabled customers often cannot find out who is responsible for enforcing accessibility standards. Your last paragraph of the “sledgehammer of federal legislation” versus “greedy lawyer problem” makes no sense, if legislation has no enforcement mechanisms. How else to get non-compliant businesses to comply if not to hire an attorney if agencies like building inspectors ignore
ADA codes?
Furthermore, most attorneys will not take ADA cases because of the limited compensation, leaving “ambulance chasers” to try to find multiple offenders to sue. These lawyers often care little about the disabled, and the disabled community must face the backlash while trying to maintain goodwill by discussing the access issues with the small business owners, and attempting to resolve them without suing.
……I note that the amended “AMERICANS WITH DISABILITIES ACT 1990″Sec. 12113. Defenses. [Section 103], (d)(1) and (2) still depressingly awards religious bodies a special defence (or defense for those of us fortunate enough to have become Americans), and allows them to give preference in employment on the basis of their own religious tenets –
What then of some of the more obscure (e.g.Indian and South American) religious brands, who find it acceptable to leave disabled children in the desert to starve to death , and/or entrust to the care of insanitary Catholic nuns with no medicines to die of curable conditions?
The legislation allows all religious organisations to insist that their employees adhere to the tenets of their faith – sooooo….if they employ someone with an infection, can they insist they refuse antibiotics and simply die????
PS please dont’ fall for “compensation culture” nonsense PI claimes have fallen since the introduction of Access to Justice
As a disabled person I have found there is a great need to enforce this legislation because unless threatened by litigation many firms will not ensure disabled acccess Its my experience that even those who claim disabled access (particularly hotels) often do not. One very costly hotel advised when asked that their disabled room was on the 1st floor!!
..we have introduced ‘mediation protocols’ – perhaps ‘touting for clients’ in this way should be more firmly within the SRA’s remit ?
Society is very slow to be inclusive of disabled people – especially in public transport and the workplace. More ‘smart’ law is the only hope for progress.
We so need Solicitors to do this in the UK, I would jump at the chance and get some compo to boot as well!…