Kansas ADA violation claims put under new scrutiny in bill called ‘nuclear warhead’

TOPEKA — Kansans filing claims against businesses for violations of the Americans with Disabilities Act could have to pay the businesses’ attorney fees even if the company is found to be in the wrong, in what one disability rights advocate called a “nuclear warhead” of a bill.

Rocky Nichols, executive director of the Disability Rights Center of Kansas, said the legislation would essentially stop Kansans with disabilities from filing any ADA lawsuits due to the cost. 

“It doesn’t just have a chilling effect on the ability of Kansans with disabilities to enforce their ADA rights,” Nichols said. “This bill ships Kansans’ ADA rights off to the deep freeze of Siberia. It’s not just a chilling effect. This is the deep freeze. It’s so overboard it’s like using a nuclear bomb to kill a mosquito.” 

Lawmakers proposed an original form of the bill as Senate Bill 258 under the assumption that people were taking advantage of the Americans with Disabilities Act to sue small businesses for frivolous claims. The ADA was passed in 1990 to protect people with disabilities from discrimination in all areas of public life. 

Under the legislation, courts could also award punitive damages to the business with a claim filed against it, but not to the disabled person in question. The bill, called the Act Against Abusive Access Litigation, would create a process for determining whether litigation claiming ADA violations is abusive or not.

A Kansas resident or the attorney general could file a civil action case against anyone who made an ADA violation claim to have the court determine whether or not the original ADA claim counted as “abusive litigation.” The “abusive litigation” determination process would try to determine whether or not the original claim was filed primarily to get payment from the business in question. 

If the litigation is determined to be abusive, the person filing the ADA claim would have to pay attorney fees and litigation costs for the business, even if the business did violate the law. 

Social Security Disability pay is about $900 a month in Kansas. Nichols said people with disabilities wouldn’t be able to risk filing claims and potentially bankrupting themselves with potentially tens of thousands in litigation costs from businesses. Nichols also said the bill disincentivizes making business accessible to those with disabilities. 

“This is about denying justice, because people are just not filing litigation,” Nichols said. “And if businesses know that they have a get out of jail free card on the ADA, what business is going to want to actually make ADA changes? It’s just rife with problems, and it’ll be used by bad actors for nefarious purposes.” 

During one of the first hearings on the legislation, Kansas Chamber spokesman Eric Stafford said he had heard of many cases in which businesses were targeted for having websites not in compliance with the ADA, though he only offered out-of-state examples, such as cases in New York, Florida and California. 

“We believe these cases are not genuine in their desire to find a solution to a problem of website compliance,” Stafford said. “These are repeated claims where small businesses appear to be randomly and geographically targeted in hopes of reaching multiple settlements.” 

Activists and other lawmakers questioned the need for such broad legislation if the issue was truly centered on website claims. 

“It’s a nuclear warhead when a flyswatter will do,” Nichols said.  

During a Tuesday Senate Judiciary Committee hearing on the bill, Sen. Ethan Corson, a Prairie Village Democrat, proposed an amendment specifically targeting website ADA violation claims.

“I think that that’s a better approach than a broad brush that will have a real chilling effect on plaintiffs’ ability to assert actual real access violation claims,” Corson said. “I think we’re better off to really focus on websites. That’s the immediate issue in front of us.”

The amendment, along with another proposed amendment that would narrow the legislation to affect only businesses with 15 or less employees, was shot down by other committee lawmakers. 

Sen. Mark Steffen, a Hutchinson Republican who pioneered the provision that would require the plaintiff with a disability to pay the business’ attorney’s fees, said the provision was necessary to dissuade abusive lawsuits. 

“There’s no question what abusive litigation is, and I think the low-hanging fruit on discouraging these is now putting these attorneys fees back on the entity bringing the suit,” Steffen said. 

During the Tuesday meeting, lawmakers gutted the contents of House Bill 2016, a bill on property deeds, and rolled the contents of SB258 into it, thus bypassing the need for a House hearing on the legislation. 

Nichols said the legislation was concerning on a local and national level. 

“This seems like a classic example of a test case where they’re trying to dramatically undo the ADA,” Nichols said. “It would have just huge horrible ramifications for our state and for the rights of people with disabilities.”

Stafford sent a statement to the Kansas Reflector after the story first appeared online.