To protect businesses from lawsuits, the US Government votes this week to manipulate the rights of disabled persons to file a discrimination complaint.
After the passage of the ADA in 1990, places of public accommodation were required to take proactive steps to be reasonably accessible to people with disabilities. (See Title III, Public Accommodations and Services Operated by Private Entities of the ADA) Incredibly, this week there is to be a vote to remove the responsibility of providing accessibility from business owners to the disabled, forcing handicapped individuals to prove they are not accommodated, allowing delaying tactics and removing the support of the Justice Department.
H.B. 620, sponsored by representatives of both political parties, aims to change the Americans with Disabilities Act (ADA), which allowed a disabled person to file a complaint immediately with the Justice Department if they were prevented from being in a public place of business that a non-disabled person had access to.
The proposed changes provide for pause and delay tactics designed to circumvent the Justice Department and delay a response by the business.
“To amend the Americans with Disabilities Act of 1990 to promote compliance through education, to clarify the requirements for demand letters, to provide for a notice and cure period before the commencement of a private civil action, and for other purposes.” https://www.congress.gov/bill/115th-congress/house-bill/620
More disabled people are demanding the same access rights to businesses, products and services as non-disabled individuals. The issue rose after the rise in lawsuits being experienced by website owners and brick and mortar businesses that are not proactive in making their properties accessible.
“Business owners shouldn’t have to choose between a costly legal fight or paying out thousands of dollars for minor, unintended or easily correctable issues,” said Betsy Laird, senior vice president of Global Public Policy for ICSC. “Congress needs to act this year to improve the ADA so resources are directed to the mission of the ADA rather than to certain plaintiffs’ lawyers.” http://www.businesswire.com/news/home/20170907006634/en/Retail-Real-Estate-Industry-Supports-Bi-Partisan-Legislation
Presently, if a disabled individual cannot access a business open to the public, they can immediately file a complaint with the Justice Department, which investigates and determines whether there is a legitimate ADA violation. Most plaintiffs opt to mediate with the offending business under the Justice Department’s moderation.
Should a business be uncooperative, the Justice Department can sue on the disabled persons’ behalf, or individuals might file lawsuits against businesses in civil court without federal involvement, sidestepping the entire mediation process. There are no monetary incentives to sue. The ADA does not allow money damages. Such damages are only available under a handful of state laws.
H.R. 620 gives owners 60 days to respond with a written plan for improvement, and an additional 120 days to correct the deficiency, or at least demonstrate sufficient progress towards a correction.
The legislation establishes a “notice and cure” provision that would create a temporary pause in litigation for up to 120 days before a lawsuit can be filed, allowing property owners the opportunity to correct identified barriers to access. The measure also mandates additional compliance safeguards, incentives to remedy alleged violations and additional resources to train professionals to provide guidance and remediation for potential ADA violations. http://www.businesswire.com/news/home/20170907006634/en/Retail-Real-Estate-Industry-Supports-Bi-Partisan-Legislation
Critics claim the changes put the responsibility for challenging violations on the disabled and there is no entity responsible for ensuring that businesses comply with the ADA.
The U.S. House Judiciary Committee voted to advance H.R. 620, which was introduced by Texas Representative Ted Poe, on September 7.
The Americans Civil Liberties Union (ACLU) is concerned because rather than requiring that a business comply proactively, the bill places the burden on the individual who is being denied access. H.R. 620 removes any incentive for businesses to become ADA compliant and encourages a path that sets up a sit and wait for a written compliant before taking any action and then they can drag out the time to respond.
“Forcing people with disabilities to wait months to visit a supermarket or bookstore is precisely the kind of discrimination the ADA was designed to prevent. Businesses have had more than enough “notification” to comply with disability rights law.”
Many organizations and groups are alarmed.
“H.R. 620 is opposed by the Consortium for Citizens with Disabilities (CCD), a coalition of approximately 100 disability organizations which includes the American Association of People with Disabilities (AAPD), American Council of the Blind (ACB), Autistic Self Advocacy Network (ASAN), Christopher & Dana Reeve Foundation, National Disability Rights Network (NDRN), and Paralyzed Veterans Association (PVA). The CCD and its allies (236 organizations in total) sent a letter of opposition to Congress outlining their concerns, and they do not hold back in calling out this bill.” https://www.themarysue.com/house-hr-620/
For additional information:
Overview of concerns with H.R. 620, the so-called ADA Education and Reform Act of 2017 (PDF) An informative document for download.
The Americans with Disabilities Act Is Under Threat http://billmoyers.com/story/really-rolling-backward-americans-disabilities-act/
Congress Makes Progress in Destroying the Americans With Disabilities Act https://rewire.news/article/2017/09/11/congress-makes-progress-destroying-americans-disabilities-act/
The Quiet Attack on the ADA Making Its Way Through Congress https://www.americanprogress.org/issues/disability/news/2017/09/22/439464/quiet-attack-ada-making-way-congress/
Disability Rights Education & Defense Fund https://dredf.org/hr620/
“H.R. 620 would weaken the Americans with Disabilities Act (ADA), a critical source of rights for people with disabilities to architectural access in public accommodations—that is, businesses such as stores, restaurants, hotels, etc.”