‘this legislation restores the purpose of the ada’

Republican-led efforts to hamstring civil rights legislation pass House

Graphic by: Sheila Embers

“An act to establish a clear and comprehensive prohibition of discrimination on the basis of disability.”

Thus reads the full title of the Americans with Disabilities Act (ADA), passed in 1990. Hailed as a landmark piece of civil rights legislation, the ADA firmly established legal protections for people with disabilities against discrimination.

Under Title III of the law, businesses that prevent people with disabilities from fully and equally enjoying “the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation” can be fined, brought to court, and issued an injunction against until such time as it the business has been made accessible.

Which was all well and good – unless you happen to be one of the 213 Republican Representatives in Congress who passed House Resolution 620, also known as the ADA Education and Reform Act of 2017. Championed and introduced by Rep. Ted Poe (R-Texas), HR 620 substantially modifies the ADA’s litigation process.

Under the reformed ADA, businesses would be granted 60 days to respond to any complaint filed, with another 60 days to “remove the barrier or make substantial progress.” More on that progress bit later.

Poe, backed by organizations such as the National Grocers Association, National Retail Federation and International Council of Shopping Centers, maintains that the intention of this bill is not to undermine the rights of people with disabilities, but rather to discourage so-called “bad actors” – lawyers  and litigants who frivolously sue businesses over minor ADA infractions. Aside from needlessly tying up the courts and ravaging small businesses, these predatory lawyers give those with genuine grievances a bad name, according to Poe.

On the surface, it seems pretty commonsense – most people would agree that plaintiffs shamelessly wrangling thousands of dollars out of small businesses over 3/8ths of an inch is hardly what the architects of the ADA had in mind. If something like this is happening all over the nation, perhaps it’s time to reform the original act.

But currently only four states allow monetary damages to be awarded to plaintiffs under ADA lawsuits: California, Hawai’i, Illinois and Florida. Granted, California accounts for a significant amount of national ADA lawsuits – according to one LA Daily News article, California was home to 40 percent of ADA litigation, despite having only 12 percent of the nation’s disabled population – yet it seems to The Advocate that rather than reforming the entire federal bill, the state could merely rescind the monetary damages statute opening this door in the first place.

Which brings us back to the specific language in HR 620. The amended Act provides 120 days, or four months, before a person unable to use a public facility (a restaurant, concert venue, retail outlet, public restroom, classroom on campus; you get the picture) for a business to show that it has either removed the architectural barrier, provided an alternate or substitute point of access, or demonstrated substantial progress in rectifying the issue.

But what does substantial progress look like? Who measures whether progress is substantial or not? And even if, after four months, a business has made substantial progress toward ADA compliance, what good does that do people with disabilities who still can’t use it?

Updates by mail that a complaint has been registered, and two months later, that some nebulous “progress” has been made does nothing in the meantime to help a would-be concert-goer, grocery shopper or other person keep missing out on what they deserve, and have demanded, access to.

While that might be an extreme example, it illustrates perhaps the most salient aspect of the proposed amendments: Under HR 620, there is no longer any incentive for businesses to proactively make their facilities ADA-compliant. In this new legal framework, businesses may continue to operate facilities that are impossible or difficult for people with disabilities to access, and delay making it accessible for significant periods of time.

It’s hard to see how this new ADA reform act establishes a clear and comprehensive prohibition of discrimination on the basis of disability, was the original ADA intended.

While HR 620 requires passage through the Senate and a signature from the President before becoming federal law, it’s likely that the GOP-controlled Senate will vote in favor of business owners, and it’s difficult to imagine a President who A) has openly mocked people with disabilities, and B) was a former real estate developer, choosing to veto this bill.

Assuming it passes, we will effectively be rolling back the rights of the disabled to 1989, before the passage of the original ADA. There will doubtless be court cases challenging this almost as soon as it goes into effect, but whether they’ll make it to the Supreme Court and whether the Supreme Court will declare the changes unconstitutional is anyone’s guess.

1 Comments

  1. Thank you for not spelling that “discretely”.

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