Jarek Molski and me

Sam at the Disability Law blog (the first one listed on my sidebar) reports on several important new stories, including a new NEJM essay by doctors in the Netherlands on killing disabled newborns and a judicial opinion issued on the Molski case in California. It's the Molski case I want to focus on here now.

Jarek Molski, a 34-year-old resident of Woodland Hills, California, has filed more than 400 lawsuits against businesses all over California charging noncompliance of Title III of the ADA as well as state laws preventing disability discrimination. While Molski sued for damages (and personal injury in many instances) under the California statutes, the ADA has received the brunt of the complaints from business owners and media reports. Often, publicity over Molski's actions fails to make the distinction that Title III of the ADA does not allow suit for damages. (Clint Eastwood failed to make this distinction as well, when he testified before Congress supporting weakening of the ADA.) Ironically, this limit to the federal law contributes to the problem of continued noncompliance of businesses nationwide -- and encourages serial plaintiffs like Molski. Sam explains:

The public accommodations title of the ADA does not authorize an award of money damages. Without that financial incentive, it's hard to find plaintiffs or lawyers who believe it worth their time to file ADA public accommodations suits. Even people who really were excluded from stores or restaurants that were really in violation of the ADA often will not want to go through the stress and hassle of an ADA suit if the best they can do at the end of the day is get a court to tell the defendant to go and sin no more. So the plaintiffs in ADA public accommodations suits are likely to be disproportionately ideological plaintiffs -- people who see it as in some ways their mission to make their communities accessible. Ditto for the lawyers. Such people are likely to file lots and lots of suits. There's nothing inherently suspect about that.

To go even further, I could see a serial plaintiff using damages from the state statute rulings to "fund" further noncompliance complaints. After all, 15 years on the books hasn't been enough to encourage thousands upon thousands of businesses nationwide to install even simple ramps. Like any law, the ADA and other disability nondiscrimination statutes can surely be abused, but I have a difficult time finding sympathy for inaccessible businesses I could never patronize that gripe about complying with a law passed in 1990.

In my hometown, both the local post office and the renovated screening rooms of the movie theater are inaccessible to me. To be clear, the only post office for miles around has no way for me to enter and no current plans to change because of the age and historic nature of the building. Dozens of other local businesses are inaccessible too, and this is not unique to this current residence of mine. Like other mobility-impaired individuals, when I consider going somewhere new -- when friends or family discuss a social outing with me -- the first consideration we must have is whether or not the place we wish to go is accessible. If it complies with the law. As often as not, we must alter our plans. If I decided to sue every business I came across that was truly violating the law just by failing to give me entrance into their front door (never mind restroom accessibility, which is equally important, really), I would not have to exert myself to become a serial plaintiff too. Noncompliance is everywhere.

Update, March, 2007: Last time I checked, the local post office says they will lay down an extremely steep (not-up-to-code) ramp at the back entrance if you call ahead for it. I've never tried this and don't know if it actually provides useability of any kind.

And the local multi-screen movie theater has installed stadium seating that requires wheelchair users to sit very close to the screen. I haven't been there since starting to use the ventilator, but before that I could not use the designated spaces without causing some serious neck pain from craning my neck. Installed seating close to the screen compensates for this problem by letting the customer recline a bit, but wheelchair users don't have that choice and cannot sit farther from the screen because of the stadium-seating stairs. This is an example of innovation for nondisabled people that makes the venue inaccessible for those in wheelchairs.