The ACCESS Act Limits Access for Disabled Americans

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Naomi Hess

I am 19 years old, so I have never lived in a world without the Americans with Disabilities Act (ADA). I have a rare form of muscular dystrophy that causes me to use an electric wheelchair to get around. I cannot even imagine how difficult it must’ve been for people with disabilities like myself to access public places before the ADA. When I go out in my community, I know that all places of public accommodations are required by law to be accessible. As a wheelchair user, I am entitled to equal access to shops, restaurants, movie theaters, schools, doctors’ offices, and any other space open to the public. I feel fortunate to live in a country where accessibility is a protected right, but some lawmakers don’t feel the same way. The ADA is under attack once again in the House of Representatives. Representative Ken Calvert of California recently introduced H.R. 4099, the ADA Compliance for Customer Entry to Stores and Services (ACCESS) Act. I want to take a minute to laugh at the bill being named the ACCESS Act, because in reality, it will severely limit access for all disabled Americans. 

The ADA was passed in 1990 by President George H. W. Bush in order to end discrimination against disabled Americans. The law provides specific standards of nondiscrimination in employment, transportation, education, and public and private places open to the general public. Under the current law, if an individual encounters a business or organization that violates the ADA, that person can speak directly with the business, file a complaint with the Department of Justice, or file a lawsuit. It seems like common sense to have a civil rights law that guarantees equal treatment for people with disabilities. So why is the ADA constantly being attacked?

This is not the first time that legislation intended to weaken the ADA has been introduced. In fact, the original ACCESS Act was introduced in 2012, with similar versions in 2013 and 2015. Last year, a comparable bill called H.R. 620, the ADA Education and Reform Act of 2017, passed the House of Representatives with a vote of 225-192, with 213 Republicans and 12 Democrats supporting this assault on disability rights. Now, we have to resume the fight against limitations on the ADA.

The ACCESS Act would amend the ADA in a way that prioritizes businesses over people with disabilities in order to reduce the number of so called “drive-by lawsuits” in which lawyers make a series of attacks on businesses for violating the ADA. These lawyers find disabled plaintiffs who more often than not have not even been to the business being sued. While this practice is wrong, the majority of ADA lawsuits are filed by actual disabled people who have been denied access to a place of public accommodation. The solution to these drive-by lawsuits cannot be to impede on the protections afforded to people with disabilities by the ADA.

Section 2 of the ACCESS Act involves promoting compliance with the ADA through education, which appears to be beneficial to people with disabilities. The bill calls for the Disability Rights Section of the Department of Justice to create a program to educate state and local governments and property owners on how to promote access. However, the bill says that this program is based on existing funds; no additional money is being given to the DOJ to develop these resources. While education is always a good idea, businesses have already had 29 years to become accessible, and there are plenty of resources available to advise businesses about accessibility. This section is really just a distraction from the notice and cure period in Section 3 in an attempt to falsely convince Representatives that the bill is meant to help people with disabilities. In reality, the bill severely harms the ability of people with disabilities to have complete access to places of public accommodation.

Under the ACCESS Act, disabled Americans will no longer be able to immediately sue businesses that violate the ADA. Instead, we will first have to give the business a written notice describing the violations in detail. The business will have 60 days to give the patron a description of the improvements planned to resolve the access issue. This doesn’t even have to include a timeline or a guaranteed date of completion. The business will then have 60 days after providing that note to remove the violation, or at least make “substantial progress”. The bill doesn’t define what substantial progress looks like, which could allow the business to drag out the renovations and keep preventing full access. 

Although I can get into most places of public accommodation in my community, I know what it’s like to not be able to enter an establishment. There’s a cute little town I visit frequently to shop and eat. Many of the shops and restaurants have a step or two to get in, and this very simple barrier excludes me and my wheelchair from the business. I know where I can and cannot go, but it still upsets me that I can’t have complete access to all businesses in this town, and so many other towns, like able-bodied people get to enjoy every day. The ACCESS Act would make this experience more common by removing the incentive for businesses to improve their accessibility. We cannot allow the ACCESS Act to pass because it would reverse the almost thirty years of progress made in increasing accessibility since the ADA went into effect. Legislators should not place limitations on the ability of people with disabilities to access our communities. 

As a wheelchair user, I am scared about what the ACCESS Act would do and what it says about the value of disabled people in society. It is a direct attack on my rights and the rights of the over 61 million Americans with disabilities. The ACCESS Act would set a dangerous precedent in civil rights law. No other protected group has to wait before suing for discrimination. If a person denied access wants or needs to sue, they should be able to, no questions asked. No other protected group has had their rights taken away from them by Congress. It is Congress’ job to expand and protect the rights of groups who face discrimination, not reduce rights. The proposed notice and cure period will disincentivize business owners to make their business accessible. Without the threat of a lawsuit, businesses will only have to be accessible if someone notifies them of a violation. A business might never encounter a disabled person who cares enough to go through the process of filing a complaint. 

What if new businesses feel like they don’t have to be accessible until and unless someone reports an infraction? What if discrimination against people with disabilities becomes more prominent as a result of these loosened accessibility requirements? I wouldn’t want to go through the burdensome and demeaning process of giving an inaccessible business a note and then just waiting for an indefinite amount of time for them to make “substantial progress,” but believe me, I will do what it takes to make my community more accessible, as should you. 

Please contact your legislators today to tell them to oppose H.R. 4099, the ACCESS Act. 

Naomi Hess worked as a Policy Intern this summer at CDR. She is a sophomore at Princeton University who intends to major in Politics and minor in Journalism. She hopes to enter the disability advocacy career field after college. In her spare time, Naomi enjoys reading, traveling, and spending time with friends and family.

Published on August 26, 2019