The Real Problem with “Drive-By Lawsuits”
On Dec. 4 the show 60 Minutes featured a segment on “Drive-By Lawsuits” hosted by Anderson Cooper. A drive-by lawsuit is a lawsuit filed by a disabled person based on an ADA (or other accessibility law depending on country of origin) violation. These lawsuits are framed as a nuisance as they are sometimes filed by people or law firms who do this regularly.
There are a number of problems with the segment.
It utilizes stigmatizing footage of disabled people
The segment utilizes background footage of Ingrid Tischer who has this to say about seeing herself in this context,
You know what’s awesome? Seeing yourself — excuse me, parts of yourself, the non-mouthy parts — on The TeeVee showing how disability access in built environments are achievable and cool in a segment where the talking parts of other people — excuse me, men people — explain the horror of running a business that doesn’t break the law or limit their customer base. Courtesy 60 FoxNews Minutes
The footage does not include her head. She is completely depersonalized.
It doesn’t delve into why there are so many ADA violations
There is no active monitoring of ADA compliance. Dealing with infractions of laws governing accessibility (in the US & many other countries) is often primarily done through complaints. So while the law may say what needs to be done, unless someone actually complains there is little incentive to actively comply. There is no independent body doing regular inspections and meting out fines for noncompliance.
The segment doesn’t question why so many of the people hit with these so called nonsense lawsuits are ignorant of the law but it shows that ignorance as reasonable. No one questions why business owners are so unaware of their responsibilities.
It suggests that compliance is only necessary if people are complaining
One of the questions that every business owner is asked is whether anyone has either actually used an accommodation or asked for it prior to the lawsuit. The answer is invariably “no”.
This is framed to seem as though the accommodation has been up till now unnecessary and that the request was ultimately frivolous. Ingrid Tischer provides insight into why disabled people don’t make requests and don’t forcefully complain if an accommodation is unavailable.
You know why I never used to ask for a pool lift and maybe never even sought one out? (Despite excellent legal reasoning that ought to render the issue moot.) Because I’ve been hardened by the indifference of business owners. You know — the people who admit on national television they weren’t following the law and somehow are the sympathetic victims of rapacious crippled people.
This segment ultimately frames accessibility law as overreaching legislation that demands things that are unnecessary but fails to look at the reality of living in a world that is routinely inaccessible. There is very real truth to the idea that if you aren’t expected to show up then you will simply learn not to. Particularly if your presence and needs are treated as an inconvenience.
It frames people who file these suits as nuisances
One of the glaring omissions of the 60 minutes piece is that it doesn’t look at how these ADA infreactions would be ameliorated if not for these lawsuits (in fact it none to subtly suggests that maybe there didn’t really need to be accommodation in the first place).
The ADA is law and yet it is widely overlooked by the people who are supposed to be subject to it. The segment points out repeatedly that proprieters don’t think that the people filing are actual customers but my question is; so what? These accommodations aren’t supposed to be things people have to ask for. They are simply supposed to be available. Why is it relevant who points it?
Cooper also talks about the lack of warning before a lawsuit but he doesn’t actually look at whether warnings are effective. In fact they go out of their way to make accommodations seem inconvenient and excessive. They point out both the specificity of the requirements (though brief lip service is paid to the importance of this) and the costs. Then they go out of there way to say that the expensive accommodation goes unused.
It basically undermines the very purpose of the ADA.
It doesn’t look at how poor enforcement of the ADA has led to the abuse of disabled people
The segment also looks at how unscrupulous lawyers recruit disabled people to use as claimants and then cheat them out of the proceeds. This is a real concern. The segment however points at the ability to sue over ADA violations as the major contributing factor in this kind of economic abuse. However, if the ADA was actively enforced it would do away with the very need for widespread filings and thus make this kind of abuse less likely to occur. Suing over ADA violations would be less lucrative.
It puts the blame for societal stigma against disabled people on disabled people who demand access
Perhaps the most egregious part of the segment is that is makes a point of voicing the idea that demands for access breed ill will toward disabled people. The problem is that this ill will already existed. The proprieters just had plausible deniability. They didn’t accommodate because they just didn’t know any better and they didn’t know any better because they didn’t take time to think about the needs of disabled people and their legal obligations towards them. This lead to the creation and maintanence of inaccessible spaces.
Ill will doesn’t only exist when people acknowledge it. It was just subversive and deniable. Having it pointed out and there being a financial ramification is not disabled people’s fault. Saying it is, only serves to encourage disabled people to stay silent.
It would be far better if government took an active role in monitoring and enforcing accessibility legislation. It would likely create a more accessible environment. It would also remove the need for mass lawsuits. It would also remove the proprietor as victim narrative because the law would be enforced more uniformly. People would not be able to opine that they had been hit with an infraction when the guy down the street did not.
Complaint based systems are not useful in enforcing legislation that is designed to help a marginalized group. It creates an adversarial environment where the marginalized are somehow always to blame because they can’t see and force everyone to comply equally.
Creating a law meant to create more equality but not including a substantive way of enforcing it says a lot about how unimportant that equality really is.
The real problem with drive-by lawsuits is not that they happen but that we live in a world that makes them so easy and in some ways necessary to create accessible spaces.
I only wish Anderson Cooper an 60 Minutes had considered that before airing that segment.
Originally published at crippledscholar.wordpress.com on December 6, 2016.