Tearing Down the ADA

More than 25 years ago President George H.W. Bush signed into law, with bi-partisan support, the Americans with Disabilities Act (ADA), which is legislation that provides civil rights protection for people with disabilities. Amongst the many protections the bill affords the disabled community is the ability to access places of public accommodation. Because of the ADA, disabled persons have an easier time entering doctor’s offices, shopping centers, grocery stores, restaurants and other public places. 

Recently, the House of Representatives passed the ADA Education and Reform Act of 2017 (H.R. 620), which despite its name, does severe harm to disabled persons. The bill creates additional and unnecessary roadblocks for the disabled community to file civil actions for violations of the ADA regarding places of public accommodation. Under current law an aggrieved individual who can’t access a business can file a complaint with United States Department of Justice, bring litigation or talk with the business owner. It should be noted under federal law that people who file lawsuits and are victorious are only entitled to injunctive relief (removal of the barrier) and attorney’s fees. They are not entitled to damage awards.

Under H.R. 620 the burden would be unfairly shifted to disabled persons to make sure the business community is complying with the ADA. For example, this legislation would force the aggrieved party to file written technical notice, often needing a lawyer, give the offending party 60 days to respond, then force the victim to wait another 120 days to see if “substantial progress” is made to fix the problem, before the matter can legally enter the court system. Is the United States Congress reasonably expecting people with a non-legal background to understand the technical intricacies of the ADA to file notice?

In addition, if businesses are not legally required to make their accommodations accessible under the ADA, what incentive do they have to comply before a complaint is filed in court? Rep. Jim Langevin (D-R.I.) who uses a wheelchair said on the House floor, “The idea that places of public accommodation should receive a free pass for six months before correctly implementing a law that has been a part of our legal framework for nearly three decades creates an obvious disincentive for ADA compliance.”
 
Presently, 16 million seniors have one or more disabilities, with mobility issues being the most common. Are proponents of the bill going to argue the elderly community should have to wait six months or more to visit a hospital or doctor’s office because it’s not accessible? Not to mention being barred from everyday activities like going shopping or the movies.   

The ADA has been the law of the land for the past 28 years. Are members of Congress going to argue that businesses have not had enough time to comply with the ADA’s requirements? The ADA National Network, funded by the federal government, offers no cost technical assistance to businesses about how to comply under the law. Furthermore, this assistance is offered at 10 regional centers around the country, and there are tax credits available to businesses that remove barriers for the disabled community. Having almost 30 years of notice, tax credits and the ADA National Network, it’s hard to cry foul that the ADA is too onerous. 
 
Lastly, proponents of the bill believe it’s a necessity because of unethical attorneys who are bringing frivolous lawsuits. People on both sides of this debate can agree that unwarranted litigation is a problem in this country. However, this bill does nothing to fix that problem! First, as referenced above, federal law does not permit plaintiffs to collect damages for cases filed under Title III of the ADA. While it’s true some states permit monetary damages for violations, the current proposal does nothing to change state law. Most importantly, what other member of a federally protected class must wait months to exercise their civil rights against discrimination?   
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When Bush signed the ADA he said, “Let the shameful wall of exclusion finally come tumbling down.” Sadly this legislation recreates exclusionary walls for disabled Americans that the ADA fought so hard to knock down. Presently, the United States Senate has shown better judgment than the House of Representatives, with 42 Senators promising to block any vote on this shameful legislation. While that is good news for the disabled community, let’s hope these senators’ commitment does not waiver. 

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​​​Evan Carmen, Esq. is the Assistant Director for Aging Policy at the B’nai B’rith International Center for Senior Services. He holds a B.A. from American University in political science and a J.D. from New York Law School.  Prior to joining B’nai B’rith International he worked in the Office of Presidential Correspondence for the Obama White House, practiced as an attorney at Covington and Burling, LLP, worked as an aide for New York City Council Member Tony Avella and interned for Congressman Gary Ackerman’s office. Click here to read more from Evan Carmen.

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