The Americans With Disabilities Act is in Serious Trouble

In a previous post, the council explored the potential effects of the ADA Reform and Education Act, a proposed law which recently passed the House of Representatives. Now that the bill is a step closer to becoming law, it’s become clearer than ever that its passage would be extremely detrimental to the disability community at large. One of the organizations most notably affected if the bill becomes law is the American Association of Retired People (AARP). While proponents of the bill cited an effort to curb frivolous lawsuits as motivation for its passage, AARP explained in an article on their website why that argument does not hold up. “In a letter to House leadership, Joyce Rogers, senior vice president of government affairs at AARP, said that, while frivolous lawsuits have been a problem in several states, that does not justify the imposition of difficult notice requirements and lengthy waiting periods. Rogers pointed out that states already can impose sanctions on lawyers for frivolous litigation.”  In other words, since efforts to stop unnecessary lawsuits already exist, there is no reason why people with disabilities need an extra hurdle to have their rights enforced. Speaking on behalf of the AARP, Rodgers commented how important the law is to the organization’s members: “Mobility is the most common disability among older Americans,” she wrote. “Of those age 65-plus with a disability [about 40 percent of older adults], two-thirds report trouble walking or climbing.” Disability advocate and blogger Mike Ervin suspects that the goal of the ADA “reform” bill is to exhaust the victims of the violations so that they do not bother to have the law enforced. Exasperated, Ervin explains, “Why have I never sued that inaccessible restaurant around the corner? Because doing so is already a pain in the butt. Filing suit in federal court isn’t on my daily to-do list. If HR 620 becomes law and I have to jump through yet more hoops before going to court, I’ll be even less inclined to take action.” He punctuates his essay by saying, “HR 620 should be called the Spin Cripples Around in Circles Until They’re too Dizzy to Sue Act. I better hurry up and sue that restaurant before it’s too late.” Folks like Ervin, if HR 620 becomes law, would have a whole new burden to deal with before they can even ensure their rights are protected. The Los Angeles Daily News explains, “If passed, the bill sponsored by Rep. Ted Poe, R-Texas, would require people with disabilities to provide a written notice to a business when they encounter an ADA violation. Businesses then would have 60 days to acknowledge the notice and 120 days to start fixing the problem before they could be sued for ADA noncompliance.” That’s up to six months before a violation of the law has to be remedied.  The proponents of the bill want to discourage frivolous lawsuits, but as explained earlier, there already exist sanctions to deal with that. It is hard to assume any law’s “true intent”, but the result of this bill’s passage would very likely be that people with disabilities will be “too dizzy to sue.” That a business won’t see a reason to enforce the ADA until a person complains about it should not be how laws work.  In a document detailing the “myths and truths” of the legislation, the American Civil Liberties Union expands further on why this set up is a burden on the disability community. “This ill-informed legislation requires people with disabilities to jump through numerous procedural hoops before they can commence a lawsuit to protect their rights.  It also removes any reason for businesses to proactively comply with the ADA. Instead of ensuring that people with disabilities have access, as the law requires, businesses will likely wait until a customer confronts an obstruction and has completed the detailed notification process.” It should not be the job of customers with disabilities to inform business owners they are violating the law, and it should not be the case that barriers are only removed when a victim says so. It doesn’t work that way in other scenarios.  In a restaurant, health violations do not merely start being corrected when a customer says they got sick. They are enforced regularly, whether someone complains of any violations or not. There doesn’t appear to be any reason why businesses failing to uphold a law that is nearly 30 years old, should be given such leeway.  The reasonable conclusion is that, to the sponsors of HR 620, we are annoying whiners getting in the way of their business conduct and deserve to be shoved to the side. But the potential 180 day period before the enforcement of the ADA is not the only glaring flaw in the bill. The ACLU continues, “Even then, the only action the business is required to make is ‘substantial progress’ in removing the barrier described in the notice. A business could wait years without actually removing barriers and face no penalty, as long as it can show ‘substantial progress’ was made.” The ambiguity of that provision is very troubling, and the ACLU is clear about why it worries them. “There would be no incentive for a business to learn about ADA compliance and take steps prior to notification. ‘Wait and see’ would become the norm.” This is yet another way we would be spun in circles until we are too dizzy to sue. A person with a disability could sue an establishment, and the establishment could follow every provision of the ADA “reform” bill after a complaint, show “substantial progress” that does not include removal of the barriers in question, and there would be nothing a plaintiff could really do about it. The process would be over. What good does this bill do aside from letting people get away with violating the rights of people with disabilities? The ACLU is even clearer in responding to one of the proponents’ favorite talking points, namely that the bill curbs frivolous lawsuits.  As the ACLU explains, “There are no damage awards.  Once a business removes the barrier in question, legal claims challenging that barrier under Title III no longer exist. Some state laws, however, do authorize money damages for non-compliance. Amending the federal ADA, as this bill does, will have no effect on lawsuits seeking damages under those state laws.” So, monetary damages only go into effect when a business does not later comply with the law. If any barriers are removed, no business would ever need to give up any money. All House Resolution 620 can possibly do is give businesses an excuse to violate the rights of patrons with disabilities. We deserve much better.