Kansas business interests eager to expand statutory shield against ‘abusive’ ADA lawsuits

TOPEKA — Lindsborg retail businessman Corey Peterson says he started receiving emails last year from New York law firms interested in representing him in a lawsuit brought by a sight-impaired person asserting the store’s website violated the Americans with Disabilities Act.

Peterson, who has operated the family’s Scandinavian gift store known as Hemslojd for more than a decade, said his initial reaction was to consider it a scam. He said the store’s website had been overhauled in 2019 and the consultant who worked on the project didn’t raise ADA issues. Then, he said, he was served documents related to a lawsuit on Jan. 10.

“The courier indicated to our clerk we were among six other small businesses they were delivering to that day,” he said. “As a small business owner, it is frightening how alone we are. Those who are filing these lawsuits know this.”

The suit was enough to convince Peterson to join with the Kansas Bankers Association, the Kansas Chamber and the National Federation of Independent Businesses in support of House Bill 2423. Advocates say the bill would protect businesses unfairly targeted by “abusive” lawsuits alleging ADA compliance issues.

Under the bill in hands of the House Judiciary Committee, a Kansas resident or the attorney general on behalf of a class of Kansas residents could file a civil case against a law firm, attorney or individual for launching lawsuits against businesses that for purported violation of the ADA. It would allow awarding of attorney fees and punitive damages against interests initiating abusive ADA lawsuits against Kansas companies.

ADA is the federal law granting individuals with disabilities certain rights and opportunities was approved by Congress in 1990. It provided guarantees people with disabilities could be provided reasonable accommodations in acquiring local, state and federal government services or in the realm of employment, transportation and the workplace.

In 2017, the Kansas Legislature approved a bill delivering comparable protection of financial institutions facing ADA compliance litigation.

“Unfortunately, that law is not enough to deter behavior of unfairly targeting businesses,” said Eric Stafford, a lobbyist with the Kansas Chamber.

Skeptics lined up to tell House Judiciary Committee members why the bill could be detrimental to people with disabilities seeking enforcement of rights under state and federal law.

Ami Hyten, executive director of Topeka Independent Living Resource Center, said the House bill was an attempt to disrupt efforts by disabled people to address barriers to participation in civic life. Contents of the bill stand in contrast to the vision of the late U.S. Sen. Robert Dole of Kansas when developing and implementing the ADA, she said.

“Being able to serve all people is good for business,” Hyten said. “Instead of embracing the opportunity to prepare for the changing needs of their customers, House Bill 2423 offers businesses an iron-clad lock on the doors to their businesses, excluding both present and future patrons.”

The bill represented a step in the wrong direction for people with disabilities interested in seeking enforcement of the ADA through the courts, said Barb Conant, co-administrator of KanCare Advocates Network.

“It would have a chilling effect on persons with accessibility claims from exercising their right to enforce equal access through the courts,” Conant said. “Kansas law already has safeguards in place to prevent frivolous or abusive litigation.”

Lane Williams, legal director at the Disability Rights Center of Kansas, said primary purpose of lawsuits filed by litigants with disabilities claiming websites in Kansas weren’t accessible appeared to be obtaining a settlement requiring Kansas businesses to pay attorney fees to the plaintiffs.

“DRC agrees that out-of-state web access lawsuits using the ADA remedies in this way is abusive and clearly not intended within the remedial framework of the ADA,” Williams said. “Such lawsuits easily can result in owners of other Kansas public accommodations distrusting the motives a Kansan with a disability trying to address potential accessibility issues aside from web access.”

However, he said the House bill was too broad because it could deter meritorious claims by Kansans with disabilities.