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As a 23-year-old disabled U.S. citizen, I have only known what life is like under the Americans with Disabilities Act (ADA) and the protections it affords me. The ADA allowed me to attend public school, go to college, travel by accessible bus, sleep away from home, eat out with my friends and family, and access other public experiences and places. Even though things are not perfect yet, I know I am fortunate to live in the post-ADA world. Many places still do not follow ADA regulations in their entirety, which cuts me off from certain experiences. However, the life I have known could negatively change under the proposed ADA Education and Reform Act of 2017.
What is H.R. 620?
H.R. 620, also known as the ADA Education and Reform Act of 2017, seeks to amend the Americans with Disabilities Act of 1990 to encourage public place compliance through formal education of requirements, clarifying the requirements for demand letters, and standardizing a notice and rectification period before a lawsuit can be filed. The law was proposed to curb “drive-by lawsuits” in which lawyers sue over technical issues that can be seen from a vehicle or photos of the business on the internet without having tried to actually use the facility. The bill has passed the House of Representatives with a vote of 225 – 192 with 213 Republicans and 12 Democrats voting in favor of it. 19 Republicans voted against the bill. In New York, representatives from districts 1, 2, 4, 11, 19, 21, 22, 23 and 27 voted in favor of the bill. The only Republican House Representative to oppose the bill in NY was John Katko, representing the 24th District.
Background and Problems with H.R. 620
The ADA was passed in 1990 (effective 1992) to outlaw discrimination against disabled individuals in public life because Congress realized a person’s “physical or mental disabilities in no way diminish a person’s right to fully participate in all aspects of society.” The law was written specifically to “provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities.” The law is divided into five titles (or sections) which prohibit discrimination against disabled individuals in all areas of public life, including employment, education, transportation, and all public and private places that are open to the public. The law is meant to ensure that people with disabilities have the same rights, opportunities and access to all spaces as everyone else in the country.
Under the current laws, an individual has three ways to handle disability discrimination including speaking with the business/organization about the issue, filing a complaint with the Department of Justice, or filing a lawsuit as explained by the law. Proponents of the bill say that H.R. 620 will strengthen the ADA when in reality it prevents individuals with disabilities from immediately going to court to enforce their rights and to press for timely removal of the barrier that impedes access. Should the bill pass the Senate, a written notice to the business will have to be made and the business will have 60 days to acknowledge the complaint and describe their plan to fix the issue. The business then has 60 more days to actually fix the issue or prove they are “making substantial progress.” As long as the business can prove “progress” they could drag out the process as long as they want. The bill does not provide a definition for what is considered “progress” though. This could mean waiting weeks, months or even years for the situation to be rectified. As Robert Meek, a Retired Managing Attorney from the Disability Rights Network of Pennsylvania points out, “…no one else has to wait to sue anybody for anything (with some rare exceptions) so this [H.R. 620] puts people with disabilities in a second-class legal status.” No other group is required to give an organization a grace period when they are legally breaking civil rights laws or any other law.
Another common argument in favor of the bill centers around the cost of ADA lawsuits. Many ADA lawsuits are viewed as money-making schemes for the plaintiff and their lawyers. As the ADA is currently written, an individual who files an ADA lawsuit and is successful is only entitled to a rectification of the access issue and attorney’s fees. Some states have authorized money damages for disabled individuals who win lawsuits but changing the federal laws will not change state laws. Businesses also complain about the cost of fixing accessibility issues. Some businesses even claim they do not know about the ADA regulations or say it is too complicated. Given that businesses successfully follow tax, fire, health and safety codes, ADA codes should not be held to a lesser standard. The ADA has been the law for nearly 30 years so there is no excuse to not be compliant. Further, there have been tax credits for business owners looking to increase accessibility (now repealed in the new tax code), as well as grants. Local programs also often provide accessibility assistance to businesses.
Lastly, while the bill discusses the importance of “more education” for businesses on how to comply with ADA requirements, the bill has no built-in funding for this idea. It does not specify how it should be done or what is expected. Given the attempts to dismantle healthcare, the rescinding of 25 ADA guidance documents by Jeff Sessions’ Department of Justice, and the Education Secretary’s seeming indifference to students with disabilities it is not unreasonable to question how the ADA Education and Reform Act of 2017 bill will make things “better.”
Should H.R. 620 pass the Senate and be signed by the President, businesses will be even less inclined to follow the ADA. By allowing businesses to further delay compliance disabled individuals will continue to be denied the access to which they are entitled to under the law. The Americans with Disabilities Act has been in effect since 1992 and if businesses are still not compliant they deserve to be penalized. If coming into compliance is expensive, a business should have two options: (1) access to government and private grants to offset costs or (2) relocate or close. The ADA already protects businesses where complying is too difficult or exorbitantly expensive. Our government should be working to improving access, not relaxing the standards that are already in place. If the real concern is the supposed prevalence of “drive-by” or “scam” lawsuits, Meek says, “a state Disciplinary Board (which is really a functionary of the state Supreme Court) could establish standards which would discourage such conduct.” We must defend our inherent rights as United States citizens and demand that H.R. 620 be defeated.
Action Steps
https://www.aapd.com/action-alert-tell-congress-not-to-weaken-the-ada/
Erin Vallely lives with a rare form of muscular dystrophy and is a proud wheelchair user. Having graduated with a B.A. in Sociology and Anthropology with a Spanish minor from Wells College in Aurora, NY, she plans to pursue a career in disability rights advocacy and public policy. In her spare time, Erin enjoys reading about other people’s experiences, supporting other minority groups, and traveling.