House Members Are Pushing a Bill That Will Roll Back the Rights of People With Disabilities

The entrance to the post office in a small town was up a flight of 20 steps. When told he needed to make the post office accessible to wheelchair users, the postmaster was befuddled. “I’ve been here for thirty-five years and in all that time I’ve yet to see a single customer come in here in a wheelchair,” he said, according to Joe Shapiro in his 1994 book, “No Pity.”

It would seem the postmaster didn’t see the irony in that response. But it’s because of that lack of awareness from business owners and government workers that Congress in 1990 passed the Americans with Disabilities Act (ADA), which promoted the integration, acceptance, and everyday rights of people with disabilities. But this week, the House of Representatives could undermine a key tenet of that landmark civil rights law.

Under Title III of the ADA, private businesses must ensure new buildings are accessible and remove barriers in older buildings where it is “readily achievable”—a standard that considers the cost of the change and the resources of the business. For example, a major hotel chain might need to spend several thousand dollars to make a few of their rooms accessible, but a small business might only be expected to spend a few hundred dollars to grind down a three inch lip into a doorway, or to put a ramp up two stairs. Now a group of businesses led by the owners of large shopping malls have persuaded more than 100 representatives to introduce H.R. 620, the so-called “ADA Education and Reform Act of 2017.” This legislation would require people with disabilities who encounter access barriers at a business or facility to become legal experts on the code, to provide “notice” to the business of what code they are violating, and to wait six months or longer. And this isn’t even for the business to actually fix the problem—just for the business to make “substantial progress” towards accessibility.

Only after all these steps and months of waiting, would H.R. 620 authorize filing a lawsuit. Navigating such a process would be both complicated and time-consuming, which, of course, is the point of the bill.

Proponents of H.R. 620 claim that the bill will help dampen what they see as an increase in individuals bringing harassing or unjustified access lawsuits against small businesses. This is an absurd argument that functions as a strawman to attack the rights of the disability community. ADA lawsuits are already one of the lowest categories of lawsuits filed against businesses. The Center for American Progress has reported that the small uptick in ADA litigation can be attributed to “just 12 individual attorneys and a single disability law firm” which filed more than 100 cases each.
Data Table of Caseload of Accessibility Complaint Statistics

On a practical level, the legislation would effectively exempt businesses from compliance with Title III of the ADA, but it would do nothing to resolve the problem of individuals who are viewed as bringing harassing or unjustified access lawsuits against small businesses. Instead, H.R. 620 erodes the balancing of interests in the ADA by removing incentives for businesses to comply with the law and by placing excessive burdens on individuals with disabilities.

As Amy Robertson of the Civil Rights Education and Enforcement Center explains, defense firms fight even the most obvious access violations. “When presented with tape-measure evidence of noncompliance,” Robertson has written, “businesses challenge standing, limit or withhold discovery, move to compel and for protective orders, resist class certification, move to stay the litigation, seek summary judgment, and only then—after years of litigation and hundreds of thousands of dollars in fees on both sides—agree to comply.”

And in reality, there’s no real incentive to dedicate one’s life to hassling businesses with lawsuits. There are no damages available under the ADA—only attorneys’ fees and injunctive relief, which removes the specific barrier they’re contesting. Litigation is time-consuming, attorneys are expensive, and people with disabilities are too busy leading their lives to file endless lawsuits.

People with disabilities face barriers everyday: inaccessible restrooms, inaccessible medical equipment, inaccessible parking lots, inaccessible entrances, and inaccessible tables at restaurants. But instead of fixing those problems, H.R. 620 would force people who have historically faced the most marginalization and discrimination in society to become legal code experts and navigate a byzantine bureaucratic process before being able to assert their rights under the ADA. The specifics of this bill might look different in the final version, but no cosmetic modifications can change the fact that it’s predicated on a faulty premise. As a matter of law and justice, businesses owe it to people with disabilities to proactively ensure access—not the other way around.

If the House wants to rectify problems in access litigation, it should be assessing penalties against noncompliant businesses—not making it harder for people with disabilities to simply assert our right to be part of society.

View comments (63)
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Michael Dalton

It has been 30 years since ADA was enacted and there was a grace period for businesses to come into compliance. The federal law has provisions for historic buildings or businesses that cannot comply for either structural or monetary reasons. After 30 years if any business has not tried to come into compliance or cannot establish why it is physically or financially impossible for them to come into compliance, then they deserve to be hammered. The law has not "changed all the time" and compliance is a normal cost of business. As for being frivolous, a judge has to find that the suit has a basis in law or they throw the case out. In truth, a few businesses have adopted the attitude, "I run my business as I damn well please and if you don't like it you can shop somewhere else." To which the "unscrupulous attorneys" say, "Thanks, you just made my case for me."

Ebony

I am horrified that this bill has passed and if there are any activists seeing this or anyone with a contact with how I can get involved in doing anything whatsoever for this community please let me know.

Anonymous

How can "Dr. Timothy Leary" be emailing from the grave? He's been dead since 1996.

John Walsh

It's not "House members" it's REPUBLICAN House members. The obviously hate disabled veterans.

Robert Durland Sr.

Accidents, Birth Defects, Head Injuries cause disabilities, and those who do not recognize or support those facing the many limitations in life are wrong.
Keep Smiling.
Prevention is the only Cure!

JoeMoser

Wish the eriter had actually read the HR document, instead of relying solely on a liberal activist.

Kathy lehman

I have severe arthritis. ..going up a curb or steps I can do without help. People are living longer and with disabilities. We need to accommodate those needs. For instance...Applebee's has curb all along the front entrance.. Handicapped parking is on the side almost furthest from the door. Then when ya do get up on sidewalk it's tipped toward the lot...probabely for water run off. Try to walk on that with a cane. I think all Caseys, Applebee's, and others should have a normal walkway into their business. Forget the dam curb. I see countless people holding onto a car or struggling to get up. Same with bathrooms. Handicapped is always furthest stall. Why? Or the stools are so low or at one place the bar is behind the stool?? What good is that? II'd like to lead a fight that all places comply. People are living 20 to 30 years longer. We are a big part of the pipulation. If want to change anything change how business places comply and make them. They don't have problems taking our money but if ask them to spend we hear about it.

Anonymous

The lawyers who pray on small businesses by slapping law suits without giving time to correct violations are doing it to extort a few thousand dollars to settle. The plaintiffs are often employees or agents of these lawyers. This is a payday scheme for unscrupulous lawyers. I am a Democrat in favor of HR 620.

Gmkjr

Here in San Diego, two law firms have filed hundreds of ADA-based lawsuits against scores of small businesses. The pattern is to settle the lawsuits in the early stage of litigation for around $10k a pop. A few years ago, virtually every business in a small mountain town here in SD county was sued in federal court. Prior to that, all of the businesses in a local shopping area in San Diego were also sued. The owners of all those businesses had no alternative to settlement, since a trangression of even the most minute regulatory requirement was enough to support liability for "damages" AND for the plaintiff's attorney fees. The ADA is well-intentioned, but in practice, it is a disaster for small businesses. This bill may over-shoot the mark, but I believe that in cases of theses kind, a warning and an opportunity to comply should be a prerequisite to liability.

SMA Advocate

I want to agree... but then I think about the fact that wheelchairs have existed for hundreds of years. ADA laws have existed for decades. One should simply plan accordingly when planning their business; it should be included in the start up costs.

I get that members of society that are immeasurably marginalized will be the last point of focus on the "Typical's" mind, but nevertheless responsibility needs to lie somewhere.

Just knowing how oblivious and sometimes ignorant people could be, I would say Hell No to the 6 month BS. Instead, I would say process should look something like:
A) Give business notice of inaccessibility
B) Business has two weeks to simply acknowledge
C) Business has one month to come up with response,
i) We will fix issue by ...
ii) We will see you in court because ...

Truly once the ball gets rolling enough for people to pay attention, and actually care, then some day this will become a non-issue.

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