"There is nothing more difficult to take in hand, more perilous to conduct, or more uncertain in its success, than to take the lead in the introduction of a new order of things."

~ Niccolo Machiavelli, historian and writer

Sunday, August 29, 2010

Litigation v. Education

The Americans with Disabilities Act is somewhat similar to Canadian human rights legislation in that it prohibits private employers, state and local governments, employment agencies, labor unions and other public entities from discriminating against qualified individuals with disabilities with respect to employment matters and access to services.  Although, unlike our human rights legislation, this particular piece of legislation applies only to individuals with disabilities (defined as "a physical or mental impairment that substantially limits a major life activity").

But it's a nice piece of legislation in that it allows individuals with disabilities who believe that they have been discriminated against direct access to the courts (as opposed to a human rights bureaucracy as is the case with our own human rights legislation).

And yet an interesting situation is developing in Florida where many small business owners feel that they are being faced with the prospect of financial ruin by certain litigants who are using the legislation in a less than honest manner.
Unaware they had any violations and insisting they don't want to discriminate, the business owners say they are served with lawsuits and pressured into settling for thousands of dollars without being given a chance to fix problems.

Vince Pardo, manager of the Ybor City Development Corp., said the plaintiffs tell business owners the same thing: Pay me $15,000 and we're out of your hair.

"That's a settlement," Pardo said
Even some in the disability community are unsure of  these so-called "drive by lawsuits",
"We call them drive-by lawsuits, quite honestly, because we're not convinced they're making the community more inclusive regarding the ADA," said Brenda Ruehl, executive director of Self Reliance Inc., a Tampa-based, nonprofit center for independent living.

Self Reliance refers businesses to certified experts for help complying with the law.

"If it comes to our attention a business is not complying with ADA, we work with that business," Ruehl said. "We have found that is much more productive and encourages people to want to buy into the ADA."

In cases when a business refuses to make changes, she said, the center works with the U.S. Department of Justice to pursue legal remedies.
The flip side of the argument, of course, is that given that this legislation came into force over 20 years ago, can business owners really legitimately argue that they didn't know what is required of them or that they were "caught off-guard" by the lawsuits?  And in a situation where Justice Department and Equal Employment Opportunity Commission lawsuits are scarce, some see private lawsuits as vital to enforcing the legislation.

Still, this story does raise what I see as a very valid issue - when is it in the best interests of the disability community to focus more on education than on litigation? 

Some see the increase in Florida lawsuits as being designed only to rake in money for plaintiffs' attorneys, noting that cases often are dismissed "with prejudice" in settlements, meaning the court doesn't have any oversight to ensure changes are made to buildings.  Leading one to question what good might actually come out of such lawsuits for persons with disabilities.

In my view, there are definitely times when "litigation" is the answer - be that recourse to a court or a human rights complaint. For whatever reason, some individuals and entities appear to only respond to the threat of a rather large stick.

And yet, at the same time, (even assuming the plaintiff is acting in good faith) the possibility remains that sometimes one can accomplish more change from working inside the system as opposed to battering it from the outside. 

Is it better to work with your school and school board to ensure that a good solid special education policy is created and properly implemented or to run to court at the first sign of trouble?

Is the answer to work with private businesses to ensure that their physical premises are in compliance with human rights legislation or to institute a human rights complaint? 

Although it's true that Canadian human rights commissions are vested with wide powers to order education, training  and physical changes to a workplace, the process is a long and laboriously slow - might it better, on some occasions, to at least attempt to work with the offending business to bring it into compliance with the law?

The answer will, of course, always be situation-specific.  But I think it's important that, both as individuals and a community, we remain aware of this issue.  Perhaps, on occasion, this awareness will lead us to make that extra little effort to educate (be it a business owner, a school board or some other entity) and offer advice and suggestions as to how the offender can become non-discriminatory.  And, should that not prove effective, whatever legal redress we have will still be there.

It's always worth a shot.  And, sometimes, it actually works.

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