Why Litigation is Essential for the Americans with Disabilities Act (ADA) Compliance
This article is NOT legal advice. If you find yourself in a situation where you are either considering filing or possibly defending accessibility litigation in the US, you need to consult a US lawyer who specializes in accessibility cases.
The ADA was enacted to provide people with disabilities equal access to public spaces, employment, and services. However, despite its noble intentions, many organizations fall short. Even 34 years after the Americans with Disabilities Act (ADA) was enacted, many organizations claim they either don’t know or don’t understand the law when a violation is brought to their attention. Other companies are fully aware of and understand the law, but intentionally choose to ignore it because of greed or prioritizing other business concerns. Whatever the reason, the fact remains that disabled American residents are not guaranteed equitable access to anything despite the law backing us up. Even when the accessibility violation is raised with the company, quick action rarely occurs. There is no “Access Inspector” division where an investigator with the government is guaranteed to review your complaint. This is when litigation remains the final option. By holding companies accountable through the legal system, we can push for the necessary changes that make our world more inclusive and accessible for everyone.
Litigation is a daunting, emotionally difficult, time consuming and sometimes expensive process that should be a last resort. Under the ADA, litigation isn’t just a necessary evil—it’s a crucial tool for driving real change and ensuring businesses take the needs of their disabled customer and potential customers seriously. As someone deeply committed to disability rights and accessibility, I can tell you firsthand that without the pressure of potential lawsuits, most businesses would ignore their obligations under the ADA.
Litigation isn’t about being punitive; it’s about education and enforcement. Lawsuits send a clear message that accessibility isn’t optional—it’s a legal and moral imperative. Litigation highlights the gaps in compliance. Furthermore litigation is not just about the plaintiff. As a plaintiff, seeing litigation through to the end turns you into an advocate for others whose voices are marginalized. Finally, litigation can create a ripple effect that encourages other businesses to proactively address accessibility issues rather than waiting for a disabled individual to file a complaint.
Here are my thoughts on what you need to consider when evaluating whether or not you want to become an accessibility plaintiff in the US legal system.
Litigation Basics
No matter how complicated or what subject the litigation is about, there are four basic components to every US civil lawsuit:
Can you file the lawsuit?
Where do you file the lawsuit and what goes into the complaint?
Can you win the lawsuit?
If you win, can you collect the damages you have been awarded?
Lawsuit Component 1: Can you file the lawsuit?
In the US, anyone can sue anyone else for anything. An American lawyer will never state with 100 % certainty that taking a particular action will “prevent” a lawsuit from being filed, because “frivolous lawsuits” as they are called, happen all the time. God has been hauled into court in the US, as has Satan, the devil, and other imaginary people. It is well known both anecdotally and objectively that the US is the most litigious country in the world. We spend 2.2 % of our GDP on legal costs. When I used the term “professional plaintiff” on an accessibility presentation where the audience was primarily Swedish, one of the participants asked in a chat room, “Is that really a thing?” followed by the “laughing so hard I am crying” emoji.
To file a lawsuit, you must have well defined legal grounds. This can include violations of federal or state laws, breach of contract, personal injury, or emotional distress. Most courts require that you allege some type of harm that was caused by the defendant’s actions. Courts typically take physical harm more seriously than emotional harm, and the larger the financial damages the more likely you will be able to get a lawyer to take the case on a contingency basis, where they don’t get paid unless you win.
Say for example, you reserve an accessible room, and in the “accessible” hotel room the grab bar on the wall is loose. You put weight on it to transfer, and you fall and break a bone. That is real physical harm. You will incur medical bills, possibly ongoing physical therapy, and definitely be out of work. Those are real financial damages, caused by the defendant’s negligence in not making sure a grab bar is secure. You may experience stress and be frustrated. That is emotional distress. These types of cases are the easier ones to file. If you go to a website, you can’t use it, and you go to a different website, it’s harder to prove harm. Maybe something cost you $5 more, or it took 20 minutes longer. When that is the case, you may want to avail yourself of the small claims court system in your state and act as your own attorney.
You can almost always use the court system, unless you are in a written agreement with the defendant to go into arbitration or mediation when a dispute has occurred rather than going to court. That might occur in the context of a rental car or an employer/contract relationship.
Litigation Component 2: Where do you file the lawsuit and what goes into the complaint?
The good news is if you have an attorney, this component is their problem. They know all the ins and outs on jurisdiction, which is the analysis of whether a court has the authority to hear a case. If there are intersecting laws, this analysis can quickly get complicated. For example, let’s say the inaccessibility happened in the workplace. Then the EEOC, state employment laws, OSHA and other agencies may intersect with your ADA claim.
There are two options for filing accessibility lawsuits: federal court, and state court
You can represent yourself in federal court and most state courts This is called “pro se” representation. However, representing yourself can be very complicated. Missing a deadline by a day or formatting a court submission incorrectly can be enough to get your entire case thrown out. Many court systems for electronic filing are not accessible. If you lose the case, you may be asked to pay the other side’s legal fees. Most ADA cases are filed in federal court because the ADA is a federal law. Occasionally ADA cases can be filed in state court if the state has similar laws to the ADA.
A jurisdictional analysis to determine which court to file in must be performed. Most of the time you need to file your case in the court that covers the area where the discrimination occurred or where the defendant operates. If you were traveling, this might be far away from where you live which makes it more complicated and more expensive.
Litigation Component 3: Can you win the lawsuit?
Standard American civil lawsuit rules apply to accessibility litigation. The plaintiff must prove:
Standing (i.e., you are a valid person to file the lawsuit).
Jurisdiction (i.e., the court handling the case has power over the defendant)
The laws cited in the complaint were actually broken by the defendant’s actions or inactions.
The plaintiff was harmed by these laws being broken.
Really, this component needs to be analyzed before the complaint is drafted. There is no point in investing time and money in a lawsuit that you are unlikely to win. Beware that state courts are losing patience with cookie-cutter ADA lawsuits. They want to see real facts that are specific to the harm the plaintiff experienced rather than generic allegations that show up in 50 of the same lawsuits clogging up the court system all saying “there weren’t any headers for me to navigate with,” or other equally vague claims. If you have filed numerous accessibility lawsuits in the past, your motivation for this new suit will be intensely scrutinized.
Settling the lawsuit is always a potential outcome. It is expensive for companies to defend lawsuits. After you have filed a complaint, the lawyers for the defendant may tell their client “this is a losing case, you should settle it.” Settlements frequently come with non-disclosure agreements, meaning you can’t talk about the complaint or the amount of money you received. It is a form of “winning” in that there is generally a payment involved, and the defendant usually agrees to fix whatever it was that caused you to file the complaint. Settlements are more likely to occur in a class-action lawsuit where a settlement would prevent other lawsuits of a similar type from being filed in the future. Paying off a single plaintiff in a non-class action case does not prevent other future plaintiffs from filing identical cases.
Also, the initial trial is not always the end of the case. The losing party always has the option of appealing, as we have seen in the Domino’s case this can drag out for years.
Litigation Component 4: If you win the lawsuit, can you collect the awarded damages?
When a case settles, the legal action is not dropped with prejudice until the plaintiff has received the agreed to payment. “with prejudice” just means that you can’t re-file the case using the same facts.
To enforce a court judgment, the plaintiff must have a certified and final decision (i.e., the right to appeal has expired). If the case was against a US defendant, and they refuse to pay, the plaintiff can take the judgment to a sheriff’s office and pay law enforcement to enforce the judgment. But sheriffs are limited to seizing property and bank accounts that are based in the US — a sheriff in Pennsylvania or New Jersey can’t fly to Australia and try to enforce a court award down under. cases against foreign defendants are much more complicated. Sometimes to attempt to collect, a second lawsuit must be filed in the country the defendant is headquartered in. Because many countries do not have accessibility laws, the foreign court may refuse to enforce the judgment because even though what the defendant did was illegal in the US, it might be perfectly fine in the country they are based in.
Regardless of where the defendant is based, it can be difficult to collect judgments against defendant’s that are not financially solvent. Under those circumstances the plaintiff becomes next in what will probably be a long line of creditors. TL;DR: You can win, and never see a dime.
While waiting for the judgment to be enforced, the plaintiff can attempt to make the defendant’s life miserable, which ratchets up the pressure for the defendant to pay the judgment amount owing. The plaintiff can:
register the unpaid award with the credit reporting agencies, BBB, and Dun and Bradstreet, making it harder for the business to get loans, leases, or credit cards in the US.
ask the secretary of state to revoke the right of the business to operate in that state by taking away their “certificate of good standing.”
wage a public relations campaign by posting in relevant public forums about how they have a valid US lawsuit award that the company won’t honor (being careful to stay on the right side of libel laws).
If the plaintiff causes enough harm to the defendant, they may pay the judgment just to make the plaintiff go away.
Conclusion
Early in law school, we are taught that:
Having an exceptional case is not the same as winning, and;
Winning an exceptional case is not the same as collecting on that win.
Litigation under the ADA isn't just about enforcing laws; it's about driving meaningful change. If you have exhausted complaints to the offending company, litigation may be your only resource. Even just threatening litigation by writing a well-drafted letter and sending it to the Chief Legal Officer for the company can result in change without litigation. However, litigation is a flashlight in the night - it shines a light on accessibility gaps, forces companies to educate themselves on their legal obligations, and creates a more inclusive society. Litigation serves as a powerful tool to ensure that businesses take their responsibilities seriously, helping to create a world where people with disabilities have equal access to public spaces, employment, and services. Through lawsuits, we send a clear message: accessibility is not optional—it's a legal and moral necessity.
While the process of litigation can be challenging and complex, it remains a powerful tool for holding organizations accountable and pushing them toward compliance. Each lawsuit represents a step toward greater accessibility and awareness, benefiting not only the plaintiff but also countless others who face similar barriers. As we continue to fight for our rights, it's crucial to understand the importance of litigation in enforcing the ADA and ensuring that the promises of equal access and inclusion are fulfilled. By standing up and taking legal action, we help pave the way for a more accessible and equitable future for everyone.