Read Fred Shotz on "Why suing is important."
Today, unlike the 1970s, lawsuits for social change are widely condemned. Yet they're the only real means we have for achieving access.
By Mary Johnson
Lawsuits. Everybody loves to hate them.
A generation ago, lawsuits were a proud means of ensuring social justice. Melissa Fay Greene, in her book Praying For Sheetrock, which tells the tale of how sleepy Darien, GA finally began in the 1970s to confront its racism, quotes one young lawyer of the era who came to Georgia to work for civil rights:
"The whole social conscience movement of the 1960s struck a deep chord in me for some reason... The only reason I went to law school was to perform public service. There was a sense in my generation that you could create social change."
Another told her, "We understood law to be self-evident truths about fundamental human rights. The question, we thought, was: How far can we take it?"
Fast forward to the 1990s. Right-wing ideologues fighting government regulation focus on lawsuits -- frivolous lawsuits, as they're almost always called. Walter Olson of the conservative Manhattan Institute starts the website overlawyered.com. Philip K. Howard writes the slim best-seller The Death Of Common Sense, which rails against attorneys who enforce civil rights laws. (Note that it is only attorneys who help the oppressed who are so singled out. Attorneys who help businesses fight these suits are OK.)
The favorite whipping boy of these pundits is the 1990 Americans with Disabilities Act.
The Americans with Disabilities Act has no federal enforcement mechanism. To get it enforced requires a lawsuit. The Department of Justice can file a suit; or suits can be filed by aggrieved disabled people.
Today's moral climate is very unlike the 1970s, when lawyers were seen as performing a public service. Today, a "lawsuit" is seen by almost no one as a noble thing -- at least nobody who speaks out publicly.
It is in such a climate that disabled people, some of them lone wolves, some of them members of grassroots organizations, and others part of well-financed legal services groups, find themselves trying to use the lawsuit to gain their rights.
Because it is the only thing they have that works.
On Sept. 8, 2004, viewers along California's Central Coast listened as KSBY's Andrew Masuda warned his TV audience about one such attempt.
Dozens of Central Coast businesses are facing lawsuits after being accused of violating federal disability access laws.
Masuda's story was soon featured on MSNBC.
The San Luis Obispo Tribune weighed in on Sept. 10 with its front-page "Wave of disability lawsuits takes toll on area businesses."
"More than 50 Central Coast businesses are reeling -- and at least one closed -- after a disabled man visited lawsuit after lawsuit on San Luis Obispo County establishments he claims discriminated against him by making it tough for him to get around," wrote rookie reporter Lindsay Christians. "Jarek Molski uses a wheelchair because of a 1988 motorcycle accident. The 34-year-old Woodland Hills man said heavy doors and access ramps that were too steep posed access problems for him."
Christians' story continued, "Disabled-parking signs at many restaurants aren't up to California code, Molski's lawsuits state. Counters at other eateries were too high, bathrooms too small and grip [sic] bars and paper dispensers were the wrong height.
At nearly every establishment, Molski claimed that he was humiliated and injured, including "upper extremity trauma" and scraping his knuckles.
The stories about Molski are only the latest in a series forming a pattern: a disabled person -- and yes, it is usually a single disabled person, a "lone wolf" -- sues enough businesses to catch the attention of the media. Others have been George Louie, of Sacramento, who news reports say has filed about 1,000 lawsuits since 1998, mostly in Northern California, and, in the 1990s, Kornel Botosan.
Once reporters lock onto the story, they're fed a steady diet of outrage by business owners, whose complaints form a pattern as well.
Businesses tell reporters ....
1. No disabled people ever come in here. The owner of The Dashboard Store and Expert Window Tinting, sued because his "bathroom wasn't compliant, his counter was too high and it was too difficult to get through the door," told Copley News Services's Matt Krasnowski that "We never saw anybody in a wheelchair come here. . . . I'm here all the time. We never saw anyone get injured."
2. "Access" is horridly expensive. This argument is a peculiar one, because the expenses which are decried in the media are usually, in fact, not for access, but for fighting against access. Over and over we read of how much lawsuits cost businesses. Invariably, a close reading of the articles reveals that the lion's share of the cost is not for access, but for legal fees -- to their own attorneys. (More.) The actual costs for the access changes is often not mentioned at all -- perhaps because it does not form a significant percentage of the cost. Reporters, however, don't seem to pick up on this.
Pismo Bowl owner Chris Goldie told Christians she had "already spent around $5,000 defending herself and can't afford to fight the lawsuit."
Most news stories referred to the $4,000 in damages Molski was collecting, an amount recently approved under California's Civil Rights act, the Unruh Act. (The ADA itself has no provision for damages, which are typically awarded in a lawsuit in which the plaintiff can prove to have been injured emotionally or physically by the discrimination.) That plaintiffs collect these legal damages is proof to businesses and pundits alike that disabled people are just trying to get money. "If this guy was interested in having more access for people with disabilities, he'd be leading people into the mediation program, not trying to line his pockets," Bob Hatch, of the Santa Maria Chamber of Commerce, told Masuda. No one seems to note that judges would likely not award the damages if the case were truly the "frivolous" one it is made out to be.
In a Sept. 11 editorial, the Tribune wrote that what it took "to make Molski ... go away" was "not a demand for upgrading of facilities; it's simply money -- whatever the market will bear."
"This is all about money and rarely about access," Andy Kotner, president of San Diego County Citizens Against Lawsuit Abuse," told Krasnowski.
3. They didn't know they were violating any law. "Business owners have protested that they didn't know about the law or that new details change too quickly for them to comply," Christians wrote. Owner Chris Goldie told Christians, "I feel like I was blindsided because I had no warning."
If this sounds a lot like actor Clint Eastwood's whine in 2000, listeners can be forgiven if they begin to think the complaining is, besides being disingenuous, is perhaps just a bit ... orchestrated. In the spring of 2000, Eastwood took on the federal law after his Mission Ranch hotel in Carmel was sued for access violations. He claimed the suit had "come out of nowhere," that he hadn't a clue he was about to be sued.
"If the real goal is (Americans with Disabilities Act) compliance, give them notice," San Luis Obispo civil attorney Jay Hieatt told Christians.
The stories, whenever and wherever they appear along California's Central Coast, seem to be used by business owners to serve as an introduction to what they see as the larger issue: not how to come into compliance with the law and become accessible, but how to avoid access altogether by getting the law changed. Specifically, geting the Americans with Disabilities Act amended to force disabled people to give businesses 90 days' notice before suing.
U.S. District Judge Dickran Tevrizian of Los Angeles told Krasnowski, "The intent of the law was fabulous, but this is a law that Congress passed that has provided full employment to a great deal of lawyers." There were roughly 40 ADA lawsuits on his docket, he said. "Multiply that by all the federal judges in the country. It's causing a lot of court congestion.. . . .The way lawyers have taken advantage of this is mind-boggling."
And so we come around to the mantra of Eastwood, Foley and the other anti-regulation gurus: because the ADA was working as it was designed to work, through the filing of lawsuits, the law was defective and needed to be changed.
"If the legislation is flawed, and lawyers, laymen and disabled advocates tend to agree it is," said the Tribune's editorial writer --although, in fact, few disabled advocates actually said this, and none were quoted in the editorial -- "why haven't the loopholes been closed? Both state and federal legislatures have been lobbied for change. Remedying legislation has been chewed on and killed in one committee after another."
It should come as no surprise that the editorial referred to Clint Eastwood, whose celebrated lawsuit occurred just a few yards up the coast in Carmel. The writer is talking about the ADA Notification Act, an amendment pushed by Florida Republican Congressman Mark Foley, which first surfaced in 2000 to a flurry of media attention brought about by Clint Eastwood's testimony in support of the bill. The Notification Act is the favorite and most consistent effort of the anti-regulation forces to whittle away at the law. So far, their effort has been kept at bay.
Although the Notification Act has made little legislative headway in Washington, damage to the law is occurring anyhow -- in the court of public opinion.
The saddest victims of the sniping war against the ADA may be disabled people themselves who, unable to withstand the kind of criticism routinely leveled through the media, turn on their own and mouth the rhetoric they're hearing on the news, furthering the agendas of the Notification Act crowd.
Two days after his initial story, Masuda was interviewing members of the local disability establishment, who to a person condemned Molski and his "tactics."
Christians wrote, "San Luis Obispo County Assessor Tom Bordonaro, who has used a wheelchair since 1977, called Molski's actions 'despicable.' ' I don't believe he's a crusader at all,' Bordonaro said. 'He's someone who's taking advantage of the system.'" To Christians, he added. "I don't need to have access to every single building in every town in every state. . . ."
"This guy is doing more damage for the handicapped than he's doing good," said Los Osos resident Chuck Fitch, 74, who pulled himself up from an electric scooter to stand before the town council, wanting to distance himself from Molski.
Claudia S. Meléndez, in her story for the Sept. 21 Salinas Californian, told readers that Molski claimed he was "'embarrassed and humiliated' by his difficulties in fully accessing Roy's Drive-In, including getting up a six-inch curb to the restaurant, becoming caught in the narrow restroom doorway, and experiencing 'trauma to his shoulders' when trying to use a toilet without grab bars."
Masuda reported that Molski, in his suit against the Hitching Post, said that "the counter is a few inches too high in the handicap bathroom, and that the toilet is three-quarters of an inch too close to the wall and one inch too low." Masuda found Casmalia wheelchair user Jim Postiff, who told Masuda "I can get in, I can get around, . . . The restrooms are fine."
In the course of things, the Tribune asked Gary Ray Rogers, a San Luis Obispo engineer, to investigate some local buildings for access. Rogers reported back that while its entrance had automatic doors, the toilet paper in Atascadero Public Library restrooms "is impossible to reach while sitting on the toilet."
Is a lawsuit over inaccessible toilet paper a frivolous one? Is a lawsuit over an inch -- or two -- a frivolous one?
When the Americans with Disabilities Act was in Congress in 1989, disability advisors had told President George Bush, privately, that most individual disabled people would be quite unlikely to sue. And that is true. Most disabled people barred from stores and businesses by architectural barriers just accept things. They know they can't get in; they go somewhere else. But a few disabled people take the law at its word: the law gives them a right to sue for access, and so they use it. They sue.
And it is often the case that those who do file suits do so because they aren't afraid to sue. Perhaps they welcome a chance to wield some real legal power and don't care whether or not they're vilified in the media. Molski calls himself "The Sheriff." Some even seem to like the rebel image they acquire -- calling themselves terms like "The Enforcer."
Because so few disabled people do this, however, the ones who do stick out, making it easy for the business community to question their motives. If the lack of access were really that awful, these critics say, wouldn't most disabled people be complaining? Since most disabled people clearly aren't complaining -- the ones they know certainly aren't, they are quick to add -- the complainers' issues aren't really valid. No; they're just in it for the money.
Other disabled people -- the ones who don't file suits -- seem to buy into these views.
Although it's more complicated than that.
"Twelve years of waiting is undoubtedly long enough," John Lee wrote to other disabled people on an email list. "But why not make a greater effort to work together with others to bring this about in as non-combative a way as possible? Although these lawsuits may bring about the necessary changes for access, I don't want to see them act as a barrier to our acceptance by the community at large. I'm inspired to do whatever I can to facilitate greater access and acceptance."
John Lee's views were perhaps similar to those of the many disabled people who read the articles and heard the TV stories and felt embarrassed, and so told reporters they did not approve of Molski's "tactics." Lee is a wheelchair user who lives and works in San Luis Obispo. He has muscular dystrophy. A younger brother is a quadriplegic, the result of an accident.
Lee and his brother frequently encountered access barriers -- attitudinal ones, too, he added.
And it was troubling and frustrating to him that businesses made little or no effort to comply with laws and regulations "after having been repeatedly notified about them since the ADA was passed 14 years ago." So he could understand Jarek Molski's "desire and efforts to do something to correct that."
But he, and other disabled people, were uncomfortable with how Molski went about things. It didn't appear, he said, that there were any attempts at mediation with these businesses before pursuing litigation. He wondered why not. Couldn't mediation have "brought about the desired barrier removal in a timely manner without a business incurring further monetary damages?"
Perhaps the businesses "did not intentionally keep barriers in place," he thought; perhaps they were "simply ignorant of the laws and regulations."
Was it unreasonable to believe that most of these businesses would agree to make "readily achievable" modifications when apprised of them through complaints and mediation? The Dept. of Justice advised mediation. Wasn't that sensible?
Lee wished Molski would have met with him and others in the group SLOCO Access -- though, he added a little later on, that group was now inactive due to lack of funding. He wished there had been more collaboration was all. He was frustrated.
"We would have gladly worked with him to identify barriers and helped to advocate for immediate changes."
Perhaps, Lee thought, people like Denise Martinez were simply inadequately informed.
Over time, though, more and more wheelchair users find themselves tired of waiting politely for the access changes promised by a 1990 law, changes that never seem to materialize, even when they ask politely. Some of these folks have banded together into organizations that file suits, sometimes only as a last resort after trying politely to get businesses to obey the law.
Mike Rifkin and his nonprofit group, the Disabled Rights Union, is one such group. Rifkin says they make every effort to work with businesses amicably. They send a business a letter, "asking them to evaluate their facility and services to see what can be done in the way of access, and to let us know in 30 days." It's not a nasty or demanding letter, he said. If the business rents its space, a letter is sent to both the business and the landlord.
"What's interesting is that 80 percent of the businesses do absolutely nothing."
The group does ultimately file suits, he said, but in every case, their attorney has first sent a letter, he added.
"I just don't understand it," he told me. "It's the law. It became effective in 1992. Why don't they obey it?"
Meléndez reported that Molski's attorneys had indeed sent letters to establishments, but that it made little difference. "Nobody pays any attention," attorney Thomas Frankovich told Meléndez. "They go, 'Hey, the guy's writing a letter, so what?'" Frankovich represented Molski on a number of the suits he had filed in and around San Luis Obispo.
People like Jarek Molski file suits, says attorney Amy Vandeveld, who has filed many suits for the man, because, simply, filing a lawsuit is the only real way to gain access. This point was confirmed again and again by the people we talked with.
"The owner of a restaurant is not going to simply spend a week's or a month's worth of profit to fix something because a person in a wheelchair came in" and said a ramp was needed, says Fred Shotz, who serves as a consultant to ADA suits in a number of states, including California.
Lawyers for businesses, says Shotz, will tell their clients not to talk to the person who complains; not to agree to anything, and "maybe the person will just give up and go away.
"A restaurant owner said to me a year ago, 'Every year someone like you comes around and complains about getting in here. Every year I tell the person to go away, and I never see him again. I tell you too: go away.'
"My experience is that we are first taken seriously when the lawsuit is served on [a business]," says Shotz. Without a lawyer, he adds, the disabled person is not taken seriously. "The business owner is very much in the driver's seat and can drive all over us." Read Shotz's story.
This simple fact, though, gets lost in the inflamed public rhetoric that swirls around the filing of lawsuits to gain access.
"Instead of asking why Molski is filing these suits," Vandeveld told me, "people should be asking why businesses aren't making any efforts to remove barriers."
"There's nothing extortionist about me," Louie told Krasnowski. "Come into compliance and I wouldn't be able to file one lawsuit in state or federal court." Krasnowski wrote that Louie's "nonprofit group, Americans With Disabilities Advocates, has collected some $500,000 a year for two years, mostly from court settlements, Louie said. He said the money goes back into litigation and to charity."
The suits the Disabled Rights Union has filed and won (they always win, Rifkin added; their attorney doesn't file suit unless the case is clear-cut) have provided their nonprofit with funds -- "$1,000 a case," he said. "But the money is not the motivation," he said; not by any means. It's access.
He told me about one business that eventually settled -- the issue with that one was parking -- and it "cost him maybe $10,000 in legal fees. Why didn't he just fix the parking in the first place?"
A good question, but one that we so far have found no answer to, other than the one Shotz and others who have been fighting the Notification Act always give: that businesses have learned, over the years, that they will not have to do anything unless they're sued. The entire business community today seems to approach the issue by ignoring access, and then bellowing about "frivolous lawsuits."
Thus the shape of civil rights in the 00s is not one of moral indignation, but one of blaming the crips.
It is emotionally difficult to go through the rigors of a lawsuit. "To go to a settlement conference and be called a 'money-hungry extortionist' and things along that line is extremely difficult," said Vandeveld. Many clients, she said, after a few rounds of this, decide that "it is less burdensome to confront the barriers than to participate in litigation." Vandeveld didn't say so, but it seemed clear to us that this was precisely the effect that folks like Eastwood hoped for. And it also seemed clear that the lone-wolf approach, where there were no others to give you the support of community, could be awfully wearing. Perhaps it did take someone like George Louie, who had served time in federal prison, according to Krasnowski, or who had the chutzpah to dub himself "The Sheriff," as Molski did, to go through with it. Someone who quite frankly didn't give a damn what others thought, or who simply laughed in the faces of businesses.
Yet in leaving ADA enforcement to such individuals, it seemed that the disability community was yet again abandoning an opportunity to build the movement, allowing the lone wolves to take the brunt of bad press for them. And, in many cases, adding to the barrage of insults against the litigant. Mike Ward of San Luis Obispo, a former city fire chief and a quadriplegic, told Christians that Molski had given wheelchair users a "bad rap." "I don't want to see businesses, especially the smaller ones, close down," he told her. Jay Feldmann of Arroyo Grande worried that restaurants wouldn't want to see disabled people coming; would "view them as pariahs." Bill Walther told her that disabled people needed to let businesses know they were not all like Molski. "We need to make T-shirts that say, 'I'm not a terrorist.' "
Vandeveld said she had represented a fair number of people who filed one suit, then said they wouldn't go through it again.
"I had a client who contacted me because he couldn't use the restrooms at a bar-restaurant where he liked to go for karaoke," she said. His routine had always been to simply empty his catheter bag in the parking lot. But he was caught doing it, and told he couldn't come back to the bar. He was outraged at this. He explained that the only reason he emptied his bag in the parking lot was because he couldn't get into the restroom.
"The staff talked about him. The patrons made fun of him. At one point he considered dropping the suit, but he kept on with it because he thought he was doing something for the disabled community."
After that case, however -- which he won -- he has not asked Vandeveld to sue anyone else. "He's told me about cases," but never filed one again.
The bar did become accessible, she said, but it was so unpleasant for him that he simply didn't go anymore.
Such experiences, which are nothing other than nasty treatment, are "fairly common," according to Vandeveld. A woman whose lawsuit involved a service animal and a nail salon learned, at the settlement hearing, that the salon owner wanted to bar her from ever coming into the salon again, as part of the settlement agreement. Although it did not survive into the final settlement agreement, Vandeveld said its intent was quite clear. "And the judge thought it a reasonable request."
"People don't understand why we fight over 2 inches in a toilet 15 inches when it's supposed to be 17 to 19," said Vandeveld.
"Try to lift your body up 2 inches and see if you can do it."
"They say, 'our faucet handles are round -- so what's the big deal?'" Vandeveld told me. "I tell them, 'for someone who can't use a round knob, then there's no water at all for them. Nondisabled customers would be up in arms if they went into restaurants and there was no water in the restroom sinks.
"'If it's no big deal,' say to them, 'then why didn't you change it?'"
Rogers told Christians, "If you write a letter and say, 'can you fix this?' they ignore you. There's no enforcement."
"With his rash of lawsuits against more than 50 local businesses, Woodland Hills resident Jarek Molski has prompted a community-wide debate about the Americans with Disabilities Act." On Sunday, Sept. 26, much of the San Luis Obispo Tribune was devoted to the ADA. Cynthia Neff's "The ABCs of the ADA: Understanding the law" and "How our public buildings measure up" told readers "what the law requires, how it differs from state law and how much it typically costs to modify buildings." It is a virtual certainty that without Molski's suits, all the encouragement in the world by SLOCO Access or San Luis Obispo's Independent Living Resource Center would not have gotten the media to pay as much attention to the issue.
As Molski worked his way through the Central Coast cities, it became plain that the focus on compliance that had long eluded more "reasonable" crip groups was starting to happen.
Molski's "spate of cases"
has apparently prompted the city to host Nov. 3 and Nov. 4 workshops for small business owners on how to comply with the federal Americans with Disabilities Act. The legislation was enacted in 1990 with the stated aims of affording disabled individuals the ability to develop meaningful skills, engage in productive work and participate fully in society.
The story ran in the Oct. 14 San Jose Mercury News , and two days later in the Santa Barbara News-Press.
Oct. 22's Redding, CA's Record-Searchlight told its readers that "The best defense against an Americans With Disabilities Act lawsuit is to fix problems before they become the subject of litigation." Reporter Marc Beauchamp quoted attorney Gary Haslerud, who had met with area business owners that week.
"Regardless of the age of the building, you should be concerned," Haslerud told them. "Don't think you've got a freebie if you're in a building built before the Act. . . . Barrier removal is an ongoing responsibility."
Most disabled people we contacted said they were thrilled that businesses were starting to be jolted into awareness that they were required by law to remove barriers, even if it was only because they feared being sued. It was about time, they told us.
As welcome as it was, the public focus on the requirements for access, though, was still curiously flat. "When I first started my ADA practice there were favorable articles about disabled people advancing rights," said Vandeveld. No more. There was no moral outrage over the fact that disabled people continued to be barred from businesses. The little emotion one could get from the coverage remained directed at those crips who filed suit.
Neither reporters nor editors seemed to view the issue of access as one of civil rights, much less as a moral issue. Cyndi Jones suggested that this might have something to do with the fact that disability groups rarely worked with media -- certainly not to the extent that businesses did. Jones heads the national Center for an Accessible Society, which works with groups to help frame disability issues in the media.
Reporters and editors don't really understand the morality of the access issue, Jones said. "They have been hit on by business interests" who tell them over and over that the problem is one of over-regulation and lawyers run amok, of complainers out to make an easy buck -- and nothing more. It's not surprising that businesses would sing this song with reporters, she added; what is surprising is that disability groups do not contact the media to either set the record straight or to present a moral argument about access; to frame the issue as one of human rights.
They would have the credibility, she said, because they're the ones affected -- if only they would present their case! But for the last 14 years they have not done it. Meanwhile, the business community has been working with media, "feeding them, being their 'reliable sources'."
It's little wonder that, given this history, disabled people "come off as money-grubbing folks who don't know anything." It was true, she said, that disability groups disliked talking to reporters and working with media; preferring to talk to one another. But without "doing that difficult task of educating reporters, we are going to only lose in the court of public opinion -- which means we are eventually going to lose the ADA."
Although the federal law has been on the books since 1990, California's access requirements have been in place for over 3 decades. Was it plausible that a business would rush to correct an access violation when given a 90 days' notice when they had not bothered to correct it for over 30 years? It was a comment we heard again and again from disabled people.
What good would a 90-day notification requirement do? asked California wheelchair user Ruthee Goldkorn, who has filed numerous suits. "Would it show the good (read: bad) little business owners that we are a reasonable bunch?"
"Their opinion of us will never change, their perception of us will never change."
In Goldkorn's opinion, disabled people should simply "suck up the criticism, elevate their own self-esteem and know damn well and good that we are doing the right thing, regardless of the bad press."
Goldkorn said the only real solution would be for the attorneys general of every state to "bring down the wrath of god on these business and fine them daily until they become compliant.
"Seeing as how that will never happen," she added, "we are responsible for ourselves.
"I can still reach my bootstraps. Can you? Then pull 'em up!!!! "
Posted November 4, 2004.
UPDATE: Molski "reined in" by judge
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