by Eve Hill
The House Judiciary Committee could consider the ironically named ADA Education and Reform Act, HR 620, before the end of the month. This bill would amend the Americans with Disabilities Act (ADA) to accommodate businesses who purport not to have figured out their obligations for the last 27 years. It would place the burden of identifying wheelchair accessibility barriers for businesses on people with disabilities.
As a result, before a person with a disability could sue to challenge a step at the entrance to a restaurant that could have easily been ramped 25 years ago, the ADA Education and Reform Act would require her to send a letter to the business identifying all the accessibility barriers in the restaurant (even the ones she can’t get to because of the step) and wait 2 months for the restaurant to respond. If the restaurant told her it would now fix the 25-year-old problem, she would then have to wait to see whether the business actually fixed the step within 4 months. Only if, after 6 months, the restaurant didn’t bother to make the fix, could she sue to make them comply.
The ADA was intended to encourage businesses to assess their facilities and make changes over time that were readily achievable to fix accessibility barriers. Making people with disabilities the unpaid consultants for businesses to identify barriers the owners walk by or step over every day is unfair, discourages businesses from complying proactively, and lets businesses continue to exclude people with disabilities out of their establishments.
This is unfair to businesses who have complied over the past 27 years, punishes people with disabilities who don’t want to complain or threaten a lawsuit just to order dinner, and sanctions ignorance as an excuse for 27 years of noncompliance with a civil rights law. No other protected group has to go through such hoops to enforce their civil rights. If a woman encounters a business that provides restrooms for men but not women, she is not required to write to the business begging for change before suing for sex discrimination. If an African American person encounters a restaurant with a “whites only” sign, he does not need to write to the restaurant asking them politely to remove the illegal sign before he can sue for race discrimination. In neither case can the business argue that it did not understand the legal requirement. Even OSHA and building code requirements are not subject to such a one-free-pass exception.
Setting these enforcement barriers in front of ADA enforcement is even more perplexing in light of the fact that Title III of the ADA does not allow damages against businesses who violate the law. If a person with a disability sues and wins against a business under the ADA, all she can win is an order for the business to comply and reimbursement of the money she owes her attorney.
This bill purports to be aimed at discouraging so-called “drive-by” lawsuits where a person with a disability sees an inaccessible business that he has no intention of patronizing and immediately files a federal lawsuit without warning, demanding a financial payment for the business to avoid paying its attorneys to defend the suit. Notably, and not surprisingly, most ADA lawsuits are filed in the few states that provide for state-law damages recoveries for ADA violations. This purported problem cannot be solved by federal ADA “reform.” Even if the ADA were to require extra hoops before filing suit, those state laws would presumably continue to allow damages for a substantive violation of the ADA, regardless of whether ADA pre-suit technicalities are followed.
In an attempt to appear to be encouraging ADA compliance while, at the same time, undermining its enforcement and incentives for voluntary compliance, the ADA Education and Reform Act would require the Department of Justice to develop an education program to teach businesses about their obligations. This provision completely ignores the fact that the Department of Justice already has such a program. And it has been offering education for businesses for about 25 years, through the ADA.gov website, a live-staffed toll-free telephone line, a speakers bureau, and a plethora of materials available for free online and in hard copy. This bill also ignores the fact that the Department of Education already funds several ADA centers across the country who offer technical assistance, training, and materials about the ADA.
The fact that all this information already exists but businesses still have not taken readily achievable steps to remove accessibility barriers after 27 years demonstrates the fallacy of this bill. Noncompliance with the ADA is not primarily a matter of misunderstanding. And it is certainly not the fault of people with disabilities demanding access too aggressively. It is largely a matter of businesses closing their eyes to the information and resources available to them. Letting them off the hook the way the ADA Education and Reform Act would do, and putting the burden of identifying access barriers on people with disabilities themselves, will thwart, rather than improve compliance.