This is a fine article by Nina Roberts, but it might have been nice if Guardian readers and their US equivalents had thought about the disproportionate burden of “equality” laws on small businesses (as opposed to large businesses who have whole floors full of hotshot lawyers) forty years ago.
Slew of lawsuits over disability access frustrates US cafe and shop owners
Rodrigo Nogueira was met with a surprise in April 2025 when lawyers contacted him out of the blue. They asked whether he needed legal assistance over a summons his restaurant received for violating Title III of the Americans with Disabilities Act (ADA).
It was the first he had ever heard of it. The lawsuit listed 35 violations against No More Cafe, his restaurant in Manhattan’s East Village.
One violation alleged a table outside the restaurant was not ADA compliant, an accusation that puzzled Nogueira: the cafe had no outdoor tables. Other alleged violations were about infractions inside the restaurant, yet the plaintiff said he was unable to enter the restaurant.
When Nogueira researched the lawsuit, he discovered that the plaintiff who sued him and the plaintiff’s lawyer had filed complaints against dozens of small businesses. The attorney who filed the lawsuit against him alone had filed more than 100 ADA lawsuits over the past nine years against storefront businesses.
Nogueira, sitting at a table in his café, said: “The [plaintiff] that’s suing me – he’s got 67 cases.”
Before possibly hiring a lawyer, Nogueira filed a motion to dismiss the case himself. But the judge said a company cannot represent itself in court. For small businesses, thousands of dollars in lawyers fees to just file a motion, can be prohibitively costly.
Frustrated with the process, Nogueira sought to speak with other small business owners. He went through public court records and found nearby businesses that were also being sued for ADA noncompliance.
“Every business owner I spoke to had opened within the last year or two. Every one of them was an immigrant,” Nogueira, who is from Brazil, wrote in a post on his website about the lawsuit. “None of us had any idea how to navigate the federal court system. Most were already several thousand dollars into legal fees by the time we talked. Several of them did not realize they had been sued until the deadline to respond had already passed.”
They also discover people who tick off the right demographic boxes can be business owners too. These regulations are only supposed to affect icky white males.
ADA trolls have been around in the US for decades, mostly out on the West Coast but obviously expanding.
For some time, only some states codified a state-law version of the ADA. Most states simply relied on the federal statute and let it all go to federal court.
But federal court enforcement of the ADA allows for injunctions and lawyer’s fees, but NOT individual damages. The states that codified their own versions usually allowed for damages – the old “pain and suffering” sorts of things.
So California was the Mecca for these lawsuits, as they had the most damages-friendly version of the ADA. We’d see lawyers out there with hundreds of cases filed, sometimes with the same plaintiff across all of them.
Sue and settle.
A very good post – thank you for it Natalie.
Yes statutes (such as the “Americans with Disabilities Act” – signed into law by the well meaning, but deeply unwise President George Herbert Walker Bush) are a horrible mess – they are divorced from any real principles of law, for it violates the traditional principles of law to claim that a business refusing to hire you, or to do business with you (have you as a customer) is a tort (it is is, by the principles of traditional jurisprudence) NOT a tort, and nor should any business have to do such things as replace stairs with ramps if the business owner does not wish to do this – otherwise the true “owner” of the business is the government, if they get to make the decisions on who is employed there and who the customers are.
“But that would mean the 1964 Act itself violates traditional justice” – YES and so it does, just as “Jim Crow” legislation violated the principles of justice (private property rights) – the 1964 Act did it in the opposite direction, supposedly to “make up for” many years of vile “Jim Crow” laws – the idea seemingly being that “two wrongs make a right” – which they do not.
In Britain there had never been “Jim Crow” laws – but we got all the “anti discrimination” edicts anyway (starting in 1965 – and ending with the Equality Act, now there is a title that lets the totalitarian cat out of the bag, of 2010).
There is also the matter of the extreme expense and complexity of the court system – yes, agreed, it is a horrible mess, and not just in the United States.
The small business owner (as opposed to vast corporations) is indeed especially badly hit by endless edicts (called “laws” although they violate the principles of law), and by the incredibly complex and expensive “justice” system.
And bobby b is correct – California has one of the worst “justice” systems (at least in Civil Law) of the 50 States – and not just in the State level, due to the practice of allowing Senators to object to the appointment of Federal Judges they do not like, leftist Unites States Senators have made sure, over many years, that Federal judges in California are leftists.
So whether you are in State courts, or Federal courts – in California, you are likely to get a parody of justice, rather than justice.
New York City (and so on) is the same.
And modern big city juries (made up of utterly corrupted people) are the final blow.
In the end we either believe in Freedom of Association or we do not – and Freedom of Association must include the freedom NOT to associate, and it is the same principle (not a “different principle” – so J.S. Mill was mistaken) in business as in non business.
It was the 1964 Act in the United States that set up the government unit that urges people, whose children have been murdered, to drone on about “I love tacos” (if the murderer was Hispanic), or “the contributions of the black community” (if the murderer was black) and to attack “Trump” for “dividing our community with his message of hate” (President Trump has done batter with black and Hispanic voters than any Republican Presidential candidate for many years – but that is ignored) and on-and-on.
There is a similar unit in Britain – and if a family tells them to go away, they have the killer response “you are not a RACIST are you?” – to prove you are not a “racist” (and if you are, you will lose their job – and the state will find other ways to harm you), you have to read out their script after your child is murdered.
“Regulations” are an integral part of a “capitalist state”; an enormous amount of regulations are lobbied for, or at the very least supported by, the largest players in a capitalist economy. We’re all familiar with Facebook lobbying for tighter internet controls, because they were able to absorb the costs, but their younger, scrappier upstart competitors were not.
But even back in the 19th Century, this was the case – large meat producers in the US lobbied for tighter controls on safety regulations, knowing that they could absorb the costs and the smaller businesses could not. I know of instances where people went over and above the regulations, and got slapped down by competition law.
It’s a hard one, because people will look at it and say “You can’t seriously be saying we should relax regulations on things like allergens, can you? You want to kill people who have peanut allegies?” – and actually yeah, I’m doing exactly that. I am totally saying that. I’m not saying I want to kill people with peanut allergens, I’m saying that I want to tell people in my own manner.
Because instead of having to follow mandated regulations, I pretty bloody clearly am not about to pretend that known allergens are not present in what I sell, what with me being, y’know, not a fucking psychopath.
Instead, in a freed market, it would be very, very likely that I could sign on to a standard, privately regulated, that says “I commit that these dishes do not contain X, Y and Z allergens”. This allows me to compete, at a modest cost, whilst still being accountable if I lie, or indeed screw up.
But people get very aggy at the idea of rolling back regulations – it’s a symptom, I think, of out-sourcing our safety to the state, on one hand, but it’s also a symptom of the standard “anti-regulation” argument being one that favours the rich rather than the poor – rolling back second-order “protections” before rolling back first-order “privileges” – which is obviously the wrong way round.
… in a freed market, it would be very, very likely that I could sign on to a standard, privately regulated, that says “I commit that these dishes do not contain X, Y and Z allergens”. This allows me to compete, at a modest cost, whilst still being accountable if I lie, or indeed screw up.
When I was growing up in the States electrical products came with a tag on the plug that had a large “UL” on it. That stood for what was then called “Underwriters Laboratories”. UL is pretty much neonsnake describes, a private organisation that not only sets standards but also tests and certifies products against those standards.
Or think about something like Tripadvisor.
Is it perfect? Probably not, but it at least points in the right direction. You check the 4 and 5 stars; then you check the 1-stars for any utter show-stoppers that might apply to your own personal circumstances.
Maybe you personally really *do* need wheelchair access (and this is not something to be sneered at), for instance, and this will likely be captured in the lower-star reviews.
These are all things we can do in the absence of state regulation – and indeed will be more likely to be honest if they sit outside state regulation.
This is why the term “capitalist” is bollocks more often then not, because it is frequently used to mean “the actions of big politically connected businesses”, rather than “market decisions made by all owners of capital”.
So, I’d say “State regulations” are an integral part of a “corporatist state” (and we all know what corporatism is a euphemism for)
Back when I was a commodities broker, the vast majority of “regulations” were not imposed by the state but rather came from the various exchanges. Sadly, that is not so much the case these days.
Perry beat me to the punch.
Although neonsnake is wrong – this edict, the Americans with Disabilities Act, was not lobbied for by Big Business – although they did not really oppose it either.
Edicts and regulations are not normally the result of lobbying from Big Business (although they rarely oppose them – for the reason that neonsnake points out) – they are normally the result of ideology, high minded reformers who think they can use the state to make the lives of people better, indeed detailed regulations existed in some nations before Big Business even existed – for example the elaborate (all embracing – or all strangling) regulations of Louis XIV and Colbert.
In the Tudor period all sorts of regulations were passed in England (some as bad as the late Roman Empire – for example the “Statute of Artificers”, that seems to have been inspired by some of the ravings of the Emperor Diocletian – more than a thousand years before ) but there as no Civil Service or police force in England to enforce them – up in Lancashire and the West Riding the detailed regulations of the Tudor State were a dead letter – which is one of the reasons the industrial revolution developed there.
An interesting example of anti Big Business “reformers” serving SOME Big Business interests is the end of mass transit in many American cities.
Contrary to what is taught it did not start with General Motors buying up these networks of trolly cars and so on, and closing them down (General Motors came in a bit later and did this) – it started with price controls on tickets, and the people who pushed for those price controls were often radical haters of Big Business.
But General Motors noticed that the price controls were putting mass transit in a bad financial position – and so offered to buy out the companies, it did not start the campaign against them – but it happily joined in.
Henry Ford (that strange mixture of good and evil) refused to join in the campaign against the mass transit companies – he thought it stank, which it did.
However, the railroad companies did back the “reformers” (including socialist “reformers”) who were pushing for the creation for the Interstate Commerce Commission – because they thought that such a body (finally created in 1887) could be used against railroad companies that refused to go along with the cartel on prices – for both passengers and cargo. J.J. Hill defined both the cartel (led by the Harriaman family) and when they hired gunmen – he hired gunmen of his own (meeting them bullet for bullet, bomb for bomb), and he defined the ICC as well (as much as he could) – so the government used “Anti Trust” on J.J. Hill – “Anti Trust” not being there to “protect the consumer” – quite the contrary. Still they never totally defeated J.J. Hill – he carried, as best he could, to his death.
“Anti Trust” was also used on the leading American aluminum company, and the leading American shoe making machine company – Big Business did not benefit, as production was driven overseas (to foreign owned business enterprises), but the “Reformers” got a glow of triumph.
Britain regulated the railways in the mid 19th century – in an Act of Parliament pushed by Gladstone (years before he was Prime Minister) – it was not pushed by Big Business, it was pushed by people who were very high minded, that did not mean the Act was a good thing.
Oxford and Cambridge universities were also interfered with (“Reformed”) – perhaps the changes were good, but it should not be the business of the state. If people do not like how a university is run – they should create a new one. This should not need state permission – and there should not be state funding either (there was not state funding for universities in Britain till the First World War).
@neonsnake
Because instead of having to follow mandated regulations, I pretty bloody clearly am not about to pretend that known allergens are not present in what I sell, what with me being, y’know, not a fucking psychopath.
We shouldn’t really have to rely on your lack of psychopathy, after all there are quite a few psychopaths in the world. But private regulation of food is extremely common, even in the hyper regulated world we live in. For example halal and kosher are privately produced standards for food that are followed by the adherents of various religious groups, vegans and vegetarians too, and I suppose there is a growing labeling trend for gluten free. Now if a Jew or a vegan ate some bacon they are not going to die. So the value of a “peanut free” certification, where a mistake can actually be deadly, would surely quickly arise from within that large community were it not from our highly regulated states.
As a matter of fact, peanuts always reminds me of my favorite story about ridiculous labelling laws. I was in Whole Foods (a big supermarket) and they had this shelf with Georgia peanuts and a little machine you could use to make fresh peanut butter. The sign said “Fresh Georgia Peanuts. Grind your own peanut butter right here. Peanuts are tasty and nutritious food. Peanuts fresh from Georgia soil”. Or some blurb like that. Underneath there was a small sign that said “Warning, this product may contain peanuts.”
I believe the correct American response to this is “No shit, Sherlock.”
In Which the Right libertarian defends state regulation to the Left libertarian!
(Not complaining. Just thought it was funny!)
@Perry de Havilland (Prague)
This is why the term “capitalist” is bollocks more often then not, because it is frequently used to mean “the actions of big politically connected businesses”, rather than “market decisions made by all owners of capital”.
Since PdH said this I am going to beat my old drum here. I really dislike the term “capitalism”. I think it is very misleading, conjuring up ideas in people’s minds of Scrooge McDuck and Mr. Monopoly. It is also highly tied in, as Perry points out, with crony capitalism, and big business in general. The “bigness of business” is very often linked directly to the croniness of crony capitalism. Plus it isn’t really very accurate. Progress in the economy comes from capital, labor and entrepreneurship together (and I suppose I have to concede a stable system of government). So to call it capitalism isn’t even accurate. BTW, don’t tell me that labor is a type of capital. I personally think Britain started to go downhill almost a the same time as our companies switched the department name from “Personnel” to “Human Resources”.
I much prefer the terminology “free market” where people have the freedom to trade how they wish and make whatever agreements they like between themselves where the government only steps in to prevent force or fraud. Freedom seems much more appealing than Scrooge McDuck.
I also much prefer ‘free market’.
But owners of capital can be governments, or a few individuals within a government, or specific organizations\companies favored by a government.
One of the most incredible unintended consequences of the ADA has been in the City of Los Angeles. The City no longer does large scale street repairs. Instead they are doing repetitive “minor” repairs, paving less than a block at a time. The reason for this is the insane costs of installing fully ADA compliant cross walks which cost well in excess of $100,000 per street corner. These are required whenever streets are resurfaced, but “minor” repairs do not trigger the requirement. And so the city spends more money on repairs (repeated small repairs are much less cost effective than repaving large stretches at once) while at the same time the streets deteriorate steadily (less total road surface is repaved annually, as the streets budget is no longer adequate to keep up). I don’t doubt that the city’s own labor contracts account inflate the costs of the crosswalks, but still this is a remarkably perverse outcome (no actual accommodation for wheelchair users and worse streets for everyone).
Alisa – yes indeed, and most large business enterprises are “owned” by financial interests such as Pension Funds, hired managers over other hired managers – with no real owners.
“Why does Hollywood make films and television shows that they know most people will not want to watch” is a question I have heard – but the answer is the same as why many publishers tend to publish books that most people despise and refuse to publish books that would “sell well” (this should be praise – but “sell well” is now considered a sneer) – the corporate executives do not own the company, they do not really care about long term profit and loss – the Corporate system (pushed by the way government taxes and regulations are structured) does-not-work.
Turn on the television in Britain and the United States and even the advertisements are political – pushing a leftist “Diversity and Inclusion” agenda, the advertising companies do not care about selling soap (or whatever) they care only for pushing a political and cultural agenda – and if they object they get reported for “creating a hostile working environment” and making leftists “feel unsafe” in the company – and so are replaced by executives and “creatives” who will go along with the agenda.
And the executives at the soap company (or whatever) do not care if they advertisements sell soap (or whatever) – they also go along with the political and cultural agenda, or they are replaced by people who will.
Without real owners, most shares in Britain have not been owned by individuals since 1965, nothing really works – Corporate bureaucracy is much the same as government bureaucracy, and if any executive “let us stop this pandering to blacks, and feminists, and homosexuals and…..” they would be out on their ear.
Yes there may be some push back at the moment – even Mr Fink of BlackRock is said to have doubts, but it is not nearly enough.
F.A. Hayek warned, many decades ago, that a corporate bureaucracy was not the same as an owner-manager in direct contact with customers – but Milton Friedman did not listen.
The Friedman vision of a corporation as an enterprise solely concerned with long term profits to help “Aunt Agatha” individual shareholders, is denounced as heartless – a better reaction would be “if only that was true – but it is not true”.
And the way that taxes and laws are structured aids corporations against owner-manager business enterprises.
phwest
Yes – modern society just does not work, regulations have reached such an extreme level that no one really benefits – not in the end, not even the most corrupt Corporations.
It is not really corporate power that is behind things such as the Americans with Disabilities Act – what is behind it all is the idea that government, government spending and government regulations, is there to “help the people”.
Once the lie (and it is a lie) that government, the Sword of State, is a positive thing – there to “help the people”, is accepted, then decline is inevitable.
Yes the outcomes of government interventions are perverse – of course they are, that is the nature of the beast.
The Sword of State is not a positive thing – it is force, not charity – it is not, and can not be, benevolence.
@Fraser
Well, exactly. Easy for me to say, but for a stranger who doesn’t know me? Not so easy to believe. So, I’d be quite happy to pay a modest sum to some independent body who certifies that what I produce is what I say I produce, and meets “whatever” standard. I make it visible when I sell meals what allergens are in them (I have a list that I refer to that I can copy and paste); I also make it clear that I cook in my home kitchen, and I personally have no allergens, so there is at least a possibility of cross-contamination with, say, gluten etc. Amusingly enough, wrt to your peanuts comment, I actually make my own peanut butter at home, so anything that goes through my food processor has a chance of being contaminated (my own comment on “may contain peanuts” in the context of your post would have been “well, I fucking hope so!”)
Also, your comment re. “personnel” vs “human resources” – it’s bought back a nice memory. My Dad (RIP), who was a CFO, said exactly the same thing to me when I got my first “people management” position in my early twenties, and advised me over a few beers to never to treat “People” as “Resources”.
Re. “capitalist” – I used the phrase “capitalist state” deliberately.
Broadly speaking, people use capitalism in one of three ways:
1) to mean “free market trade” (people own property and trade between themselves, without bosses or states forcing you to do so)
2) to mean “Corporatism” (big business and gvmnt work together, with rules and regulations that favour big business at the expense of workers and small business)
3) to mean “Rule by Capitalists” (a small-ish group of very wealthy people own most of the “means of production”, and have outsized influence over society, government and the workforce/workplace)
“Actually Existing Capitalism” – ie. how the world is actually structured and how it actually works today – is NOT number 1. It is a mix of 2 and 3. I have ZERO issue with definition number 1, and is in fact what I wish and desire, and I have been very consistent on this. But I oppose both 2 and 3, and that’s what I mean when I say “capitalist state”, because it’s the most accurate description of the world as it exists. I also much prefer the term “free market”, as it’s more accurate to my desires.
(and yeah, I know that “socialism” has many different popular definitions as well, but that’s a different conversation)
Taco Bell in the United States is pulling fresh produce from sale owing to an outbreak of a parasite. As this article points out “It must be noted that this is not a government-mandated “recall.” It is a proactive move by the restaurant chain, which apparently reviewed case histories and made it based on an internal risk assessment.” [emphasis added]
Why would a firm be motivated to made such a decision? Well, the article tells us that too: “Taco Bell’s proactive response is clearly prudent, as the food chain would probably like to stay out of the headlines and avoid being the punchline to diarrhea jokes.” An understandable aim.
I felt this sense of the absurd on seeing on an egg box the legend, allergy information, contains egg. But then thinking about it, where do you draw the line regarding what constitutes the bleeding obvious? It is far easier to put correct allergy information on absolutely everything even when it seems to be absurdly obvious than it is to make a judgement call based on estimating the depths of human stupidity.
I recall a news story about a teenaged girl who had died after deliberately inhaling insecticide. Those trying to defend her idiocy were saying that the aerosol can should have been more clearly marked. It had a skull and crossbones above the word poison in a really sinister font. So yes, if I was selling peanut based products I would definitely be covering my arse by putting contains peanuts on the packaging.
Very familiar with the ADA insanity in California. Some idiot in Sacramento (guess which party) passed an AB that makes it trivial to file an ADA case against any business and the way the law was drafted makes its almost impossible for the business not to be found “guilty”. No matter how obviously made up the evidence.
As a result 95%+ of all ADA cases filed in California in the last few decades are fraudulent. Not just one off shakedowns but most filed by the same lawyers/ law firms. Year after year.
So far, so typical. Now where this story gets really interesting is that despite overwhelming evidence that bottom feeder lawyers initiate almost all of the fraudulent ADA cases and very obviously coach the witnesses, often using the same “disabled” person as plaintiff for multiple cases, when I went looking for even a single professional misconduct case / disbarment by the California State Bar I could find none. Not one. In the last few decades.
But hey, what do you expect when most of the political donations by trial attorneys / liability lawyers etc goes to one party. Again, guess which one. Based on the wording of the AB for ADA lawsuits wouldn’t be surprised if the original draft was written by one of these bottom feeder law firms. As the Dem Party in Sacramento is now purely Pay To Play its a fun game with AB’s / SB’s trying to work out exactly which lobbyists drafted the bill. The bills not drafted by lobbyists read so differently.
tfourier – as you know, Californian governance has crossed over from having some corruption (all systems have some corruption) to BEING corruption – the system IS now corruption.
For example, elections in California are now totally corrupt – as the recent Los Angeles election for Mayor showed – the “right wing”, i.e. non Communist, candidate, was not even allowed to get into the second round – not only was the terrible, and Castro supporting, Mayor declared to be in first place – but an obscure Marxist (the “Democratic Socialists of America” was founded by a Marxist, Mr Harrington, and remains Marxist) from India was declared to be in second place – with piles and piles of “mail-in ballots”, so there is no way that people can vote their way out of this.
And in the past, when elections were not corrupt in California, the State Supreme Court struck down any effort to limit government spending and regulations – even insisting (in defiance of a referendum) that illegal immigrants should get endless government benefits and public services, the Californian judges put their own Collectivist ideology (which is both evil and insane) above the law and Constitution.
The conclusion of all this is bitter, but clear – people who can leave California, should leave California.
The Governor of California is evil, the State Legislature is evil (and has been for many decades), and the Californian judges are evil.
Sadly I doubt Steve Hilton stands any chance in California – he may win a majority of voters, but he will face the voting machines, and the “mail-in-ballots”.