Order Code RS22296
October 12, 2005
CRS Report for Congress
Received through the CRS Web
The Americans with Disabilities Act:
Legislation Concerning Notification Prior to
Initiating Legal Action
Nancy Lee Jones
Legislative Attorney
American Law Division
Summary
The Americans with Disabilities Act (ADA) provides broad nondiscrimination
protection in employment, public services, and public accommodation and services
operated by private entities. Since the 106th Congress, legislation has been introduced
to require plaintiffs to provide notice to the defendant prior to filing a complaint
regarding public accommodations. In the 109th Congress, H.R. 2804 was introduced by
Representative Foley to amend title III of the ADA to require notification. This report
will be updated as necessary.
The Americans with Disabilities Act
Statutory Provisions. The Americans with Disabilities Act, 42 U.S.C. §§12101
et seq., has often been described as the most sweeping nondiscrimination legislation since
the Civil Rights Act of 1964. It provides broad nondiscrimination protection and, as
stated in the act, its purpose is “to provide a clear and comprehensive national mandate
for the elimination of discrimination against individuals with disabilities.”1
Title III provides that no individual shall be discriminated against on the basis of
disability in the full and equal enjoyment of the goods, services, facilities, privileges,
advantages, or accommodations of any place of public accommodation by any person who
owns, leases (or leases to), or operates a place of public accommodation.2 Entities
covered by the term “public accommodation” are listed and include, among others, hotels,
restaurants, theaters, auditoriums, laundromats, museums, parks, zoos, private schools,
1 42 U.S.C. §12102(b)(1). For a more detailed discussion of the ADA see CRS Report 98-921,
The Americans with Disabilities Act (ADA): Statutory Language and Recent Issues, by Nancy
Lee Jones
2 42 U.S.C. §12182.
Congressional Research Service ˜ The Library of Congress

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day care centers, professional offices of health care providers, and gymnasiums.3
Although the sweep of title III is broad, there are some limitations on its
nondiscrimination requirements. A failure to remove architectural barriers is not a
violation unless such a removal is “readily achievable.”4 “Readily achievable” is defined
as “easily accomplishable and able to be carried out without much difficulty or expense.”5
Reasonable modifications in practices, policies or procedures are required unless they
would fundamentally alter the nature of the goods, services, facilities, or privileges.6 No
individual with a disability may be excluded, denied services, segregated or otherwise
treated differently than other individuals because of the absence of auxiliary aids and
services unless the entity can demonstrate that taking such steps would fundamentally
alter the nature of the goods, services, or facilities or would result in an undue burden.7
An undue burden is defined as an action involving “significant difficulty or expense.”8
The remedies and procedures of section 204(a) of the Civil Rights Act of 1964 are
incorporated in title III of the ADA.9 This allows for both private suit and suit by the
Attorney General when there is reasonable cause to believe that there is a pattern or
practice of discrimination against individuals with disabilities. Monetary damages are not
recoverable in private suits but may be available in suits brought by the Attorney
General.10 Section 204(c) of the Civil Rights Act requires that when there is a state or
local law prohibiting an action also prohibited by title II, no civil action may be brought
“before the expiration of thirty days after written notice of such alleged act or practice has
been given to the appropriate State or local authority....” The ADA does not specifically
incorporate this requirement, and the courts which have considered the issue have
generally found that this requirement was not incorporated in the ADA.11
Judicial Decisions. Numerous judicial actions have been brought under the
ADA. The situation which has given rise to legislation concerning notification
requirements involves the filing of multiple law suits by an individual with a disability
based on deminimus violations and seeking money for a settlement.
3 42 U.S.C. §12181.
4 42 U.S.C. §12182(b)(2)(A)(iv).
5 42 U.S.C. §12181.
6 42 U.S.C. §12182(b)(2)(A)(ii).
7 42 U.S.C. §12182(b)(2)(A)(iii).
8 28 C.F.R. §36.104.
9 42 U.S.C. §12188. Section 204a-3(a) of the Civil Rights Act of 1964 is codified at 42 U.S.C.
§2000a-3(a).
10 42 U.S.C. §12188(b)(4).
11 See e.g., Botosan v. Paul McNally Realty, 216 F.3d 827 (9th Cir. 2000). For a detailed
discussion of this issue see Adam A. Milani, “Go Ahead. Make my 90 Days: Should Plaintiffs
be Required to Provide Notice to Defendant Before Filing Suit Under Title III of the Americans
with Disabilities Act?” 2001 Wisc. L. Rev. 107 (2001). This article argues that the best reading
of the ADA is that it requires, like title II of the Civil Rights Act, that plaintiffs provide thirty
days notice to a state or local agency responsible for combating discrimination prior to filing suit.
The article concludes that this interpretation renders federal legislation to provide notice
unnecessary.

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Although these cases are seldom tried in court, a recent decision, Molski v. Mandarin
Touch Restaurant12 did result in an opinion finding that the plaintiff was a vexatious
litigant who filed hundreds of law suits designed to harass and intimidate business owners
into agreeing to cash settlements. The plaintiff, Jack Molski, had a physical disability
which required that he use a wheelchair and had filed between 300-400 lawsuits in federal
courts since 1998. The district court reviewed the cases and found that “ many are nearly
identical in terms of the facts alleged, the claims presented, and the damages requested.”13
In fact, the court noted in one complaint Mr. Molski claimed that on May 20, 2003 he
went to El 7 Mares restaurant which he alleged lacked adequate parking and had a food
counter that was too high. After the meal, the plaintiff alleged that he attempted to use
the restroom but because the toilet’s grab bars were improperly installed, he injured his
shoulder and he was also unable to wash his hands due to faulty design. In two other
cases, Mr. Molski alleged that he encountered almost identical problems in another
restaurant and at a winery on the same day, May 20, 2003. The court found these
complaints to be indicative of a clear intent to harass businesses.14 Even though the court
noted that it was “possible, even likely, that many of the businesses sued were not in full
compliance with the ADA,” the court found the sanctions for bad faith were not therefore
barred, especially where the motive was to garner funds. The district court ordered the
plaintiff to obtain the leave of the court prior to filing any other claims under the ADA
observing that “in addition to misusing a noble law, Molski has plainly lied in his filings
to this Court. His claims of being the innocent victim of hundreds of physical and
emotional injuries over the last four years defy belief and common sense.”15
In a related suit, the California district court also found against the counsel in the
Molski case holding that the counsel was required to seek leave of the court before filing
any additional ADA claims.16 The exact effect of these decisions is uncertain. In Molski
v. Arby’s Huntington Beach,
17 Mr. Molski again claimed that a restaurant was inaccessible
and discriminated against him under the ADA. The court issued an order to show cause
as to why the complaint should not be dismissed for lack of subject matter jurisdiction in
light of the previous ruling declaring the plaintiff a vexatious litigant. The court
discharged the show cause order finding that “[w]hile the filing of hundreds of lawsuits
12 347 F.Supp.2d 860 (C.D.Calif. 2004).
13 Id. at 861.
14 The district court observed: “The Court is tempted to exclaim: ‘what a lousy day!’ It would
be highly unusual–to say the least–for anyone to sustain two injuries, let alone three, in a single
day, each of which necessitated a separate federal lawsuit. But in Molski’s case, May 20, 2003,
was simply business as usual. Molski filed 13 separate complaints for essentially identical
injuries sustained between May 19, 2003 and May 23, 2003. The Court simply does not believe
that Molski suffered 13 nearly identical injuries, generally to the same part of his body, in the
course of performing the same activity, over a five-day period.” Id.at 865.
15 347 F.Supp.2d 860, 867 (C.D.Calif. 2004).
16 Molski v. Mandarin Touch Restaurant, 359 F.Supp. 924 (C.D.Calif. 2005).
17 359 F.Supp.2d 938 (C.D.Calif. 2005).

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may impact Mr. Molski’s credibility and the believability of his assertions that he intends
to and will return to Arby’s....,this is not an issue to be evaluated at the pleading stage.”18
In another recent California case, Doran v. Del Taco, Inc.,19 the court denied
attorneys’ fees where a plaintiff who uses a wheelchair had won a settlement against a
restaurant where he alleged he had encountered architectural barriers. Following a
discussion of the use of ADA to create profits for law firms, the court held it was “fair and
reasonable to require pre-litigation unambiguous notice and a reasonable opportunity to
cure before allowing attorneys’ fees in an ADA case.”
Notification Legislation in the 109th Congress
Changes in the ADA’s statutory language to address the issue of vexatious law suits
have also been proposed.20 Representative Foley introduced the ADA Notification Act,
H.R. 2804, 109th Congress, on June 8, 2005. H.R. 2804 would add provisions to the
remedies and procedures of Title III of the ADA to require a plaintiff to provide notice by
registered mail of an alleged violation to the defendant. This notice would be required
to contain the specific facts regarding the alleged violation including the identification of
the location at which the violation occurred, and the date on which the violation occurred.
The notice also would require informing the defendant that civil action may not be
commenced until the expiration of a ninety day period. A state or federal court would not
have jurisdiction for a civil action filed pursuant to title III of the ADA or under a
provision of state law that conditions a violation of any of its provisions on a violation of
the act unless this notice is provided, at least ninety days have passed, and the complaint
stated that, as of the date on which the complaint is filed, the defendant had not corrected
the alleged violation. The notification provisions would not apply to civil action brought
under Rule 65 of the Federal Rules of Civil Procedure or civil actions under state or local
court rules requesting preliminary injunctive relief or temporary restraining orders. H.R.
2804 was referred to the House Judiciary Committee.
Previous Legislation
H.R. 728, 108th Congress, was introduced in the House on February 12, 2003 with
essentially the same language as bills introduced in previous Congresses. H.R. 2804,
109th Congress, differs somewhat from H.R. 728. For example, H.R. 728 would have
18 Id. at 948. See also Molski v. Kahn Winery and A.K Cellars, 382 F.Supp.2d 1209 (C.D. Calif.
2005), where the court dismissed the ADA claim.
19 373 F. Supp.2d 1028 (C.D.Calif. 2005).
20 Proponents of such legislation have argued that notification requirements would help prevent
the filing of suits designed to generate money for plaintiffs and law firms. See Testimony of the
honorable Mark Foley, hearing on H.R. 3590, The ADA Notification Act, Before the House
Committee on the Judiciary, Subcommittee on the Constitution, May 18, 2000. Published at
[http://www.house.gov/judiciary/fole0518.htm] Those opposed to the legislation have argued
that it would undermine enforcement of the ADA and that vexatious suits are best dealt with by
state bar disciplinary procedures or by the court. See Letter to Honorable Charles Canady,
chairman, Subcommittee on the Constitution, House Committee on the Judiciary from Robert
Raben, Assistant Attorney General reprinted at [http://commdocs.house.gov/committees
/judiciary/hju66728.000/hju66728_0f.htm]

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allowed notice to be provided in person, not just by registered mail. H.R. 728 was
referred to the House Judiciary Committee and to the Subcommittee on the Constitution.
Although the bill was not passed in the 108th Congress, the House Subcommittee on Rural
Enterprises, Agriculture, and Technology of the House Small Business Committee held
hearings on the bill on April 8, 2003.21
The two ADA Notification Acts in the 107th Congress, H.R. 91422 and S. 792,23 like
their predecessors H.R. 359024 and S. 3122,25 106th Cong., contained similar language.26
There was no committee action on the ADA notification legislation in the 107th Congress.
Hearings were held by the Subcommittee on the Constitution of the House Committee on
the Judiciary on H.R. 3590 on May 18, 2000.27
21 [http://wwwc.house.gov/smbiz/hearings/108th/2003/030408/New.asp]
22 H.R. 914 was introduced by Rep. Foley.
23 S. 792 was introduced by Sen. Inouye.
24 H.R. 3590 was introduced by Rep. Foley.
25 S. 3122 was introduced by Sen. Hutchinson.
26 H.R. 914, 107th Cong., H.R. 3590, 106th Cong., and S. 3122, 106th Cong. are identical. S. 792
contains some minor differences.
27 Hearing on H.R. 3590, the ADA Notification Act, Before the House Committee on the
J u d i c i a r y , S u b c o m m i t t e e o n t h e C o n s t i t u t i o n , M a y 1 8 , 2 0 0 0 .
[http://commdocs.house.gov/committees/judiciary/hju66728.000/hju66728_0f.htm]