A new piece of federal legislation would delay consumers’ ability to hold businesses legally accountable for failing to comply with the Americans with Disabilities Act (ADA) — a move that some critics say could allow companies to never comply with the ADA in the first place.
Under current law, when a business fails to comply with the ADA, those affected by the failure have the option of taking that company to court. But the ADA Education and Reform Act of 2017 (HR620) would prohibit Americans from filing an ADA compliance lawsuit without first having gone through a lengthy process involving several new steps.
The bill was introduced earlier this year by Rep. Ted Poe of Texas, and now that it’s been approved by the House Judiciary Committee it could come up for a full House vote in the near future.
What Is ADA?
The ADA is a civil rights law — enacted in 1990 — that prohibits discrimination against individuals with disabilities in all areas of public life, including jobs, school, transportation, and public or private venues open to the general public.
Title III of ADA specifically addresses an individual’s access to public accommodations even when privately owned, such as retail stores, movie theaters, hotels, restaurants, and other businesses.
While the title sets the minimum standard for accessibility when it comes to remodels and new construction of these venues, it also requires businesses to remove barriers in existing buildings where it is easy to do so without much difficulty or expense.
Businesses are directed to make “reasonable modifications” to their usual ways of doing things when serving people with disabilities.
If a business does not abide by these rules, an individual can enforce their right to access by addressing the issue with the business, filing a complaint with the Dept. of Justice, or take the company to court.
What Would Change?
The ADA Education and Reform Act of 2017 would essentially shift the burden of compliance. Instead of businesses proactively complying with ADA, the bill would place the burden on the individual while providing the offending business with weeks, months, or even years to address the issue.
Instead of simply being able to file a lawsuit against a business, individuals would have to take numerous steps before they are able to take legal action.
Here’s how it would work: When an person encounters an obstacle or barrier preventing them access to a business, they are required to provide that business with written notice of the issue.
The business then has 60 days — about two months — to provide its own written response to the customer. This response must provide a description of what the company is doing to improve access and remove the offending barrier.
Once this letter is sent, the business receives another 120 days — about four months — to either remove the barrier or make “substantial progress” in removing the barrier.
Only if the business fails to provide written notice, or make progress after 120 days, can the consumer file legal action against the company forcing it to comply with ADA.
That’s A Problem
HR 620 incentivizes business to drag their feet in complying with ADA’s accessibility obligations and acts as a deterrent to people looking to enforce their rights, consumer advocates argue.
“The so-called ADA Education and Reform Act of 2017 is not what its proponents claim and will not achieve its stated goals,” the ACLU contends. “Instead, this bill undermines the very purpose of the landmark civil rights law and harms people with disabilities.”
If the legislation is enacted, compliance under the ADA will suffer and people with disabilities will be denied the access to which they are entitled to under the law, the group notes.
By requiring individuals to jump through numerous “procedural hoops” before filing a lawsuit, the ACLU believes that business will likely wait until they are confronted by a customer to take action to comply with ADA.
But even then, the business only has to show that it has made “substantial progress” in removing the barrier. However, the legislation does not specify what constitutes as substantial progress.
To that end, the ACLU argues that businesses could wait years without removing the barrier and face no penalty, as long as they can show substantial progress is made.
“By allowing a business an endless amount of time to become compliant with the ADA’s reasonable requirements, H.R. 620 removes any incentive for a business to proactively ensure that people with disabilities have access,” the group states. “Instead, the bill encourages businesses to just wait until an individual’s civil rights are violated before making any changes.”
Human Rights Watch argues that if the legislation is enacted many would likely give up on their plight to ensure access, rather than put themselves through so many hurdles and delays in complying with the ADA.
“The United States has the obligation to ensure businesses do not discriminate against people with disabilities,” Carlos Ríos Espinosa, Senior Researcher and Advocate of Disability Rights Division for HRW, wrote in a blog post on the issue.