This week, Congress is expected to vote on a bill that would significantly weaken the landmark Americans with Disabilities Act and let businesses off the hook for failing to provide accommodations for accessibility.
The ADA Education and Reform Act was introduced by Rep. Ted Poe (R-TX), and was recently adopted in the House Judiciary Committee. It addresses the 1990 civil rights law that protects people with disabilities when it comes to employment; access to public entities, such as transportation; and accommodations to fully enjoy businesses, such as being able to go to a hotel without barriers to getting inside. The law allows people with disabilities to file lawsuits against businesses that don’t provide reasonable accommodations, but supporters of the ADA Education and Reform Act argue that it fuels “drive-by lawsuits.”
The bill would require people making complaints to let a business know of any accessibility violations in writing. The business would then have 60 days to acknowledge the complaint and respond, and 120 days after the 60 days to make “substantial progress” toward making changes. These provisions would essentially remove any incentives for businesses to comply with the ADA, the ACLU argues, because business owners can theoretically be out of compliance for years and not be penalized for it. They only have to say they are making “substantial progress.”
In a letter to Reps. Steve King (R-IA) and Steve Cohen (D-TN), who serve on the House Judiciary Committee, the Consortium for Citizens with Disabilities wrote last year, “We know of no other law that outlaws discrimination but permits entities to discriminate with impunity until victims experience that discrimination and educate the entities perpetrating it about their obligations not to discriminate.”
According to the ACLU, the bill also flies in the face of the intention of civil rights laws. The Civil Rights Act of 1964’s provision allowing those who are denied access to public accommodation due to race, color, religion, or national origin to immediately seek relief aims to push businesses to take these accommodations seriously. Sen. Tammy Duckworth (D-IL) wrote in The Washington Post last year that it would make the disability community “the only protected class under civil rights law that must rely on ‘education’ — rather than strong enforcement — to guarantee access to public spaces.”
The business community, which has had three decades to learn about and adjust to the ADA, must provide accommodations that don’t present an undue burden and are readily achievable. Businesses have been using this vague language to their advantage for years, as The American Prospect recently reported, “to seek favorable court rulings, claiming at various times that providing ‘reasonable accommodations’ would constitute an ‘undue burden’ on their finances.” There is little evidence to support the claim that frivolous lawsuits are a problem with the ADA specifically. Although supporters of the bill say that there has been a 37 percent increase in Title III filings in 2016 compared to 2015, those are made of a small number of large-scale filers. Furthermore, ethics rules bar lawyers from bringing frivolous lawsuits.
The argument that people with disabilities are trying to make money off the ADA is not based on fact, as Robyn Powell explained in Rewire. “When the ADA was being drafted, as a compromise between the business community and the disability community, the disability community gave up the option to obtain damages for a business’s failure to comply with the law by allowing only injunctive relief — meaning the business owner has to change their behavior — and attorneys’ fees,” Powell wrote. Some state and local laws allow compensatory damages to be assessed against the business owner, but the ADA does not permit monetary damages to be assessed against business owners in lawsuits brought by people with disabilities.
If the bill passes, it would affect 22 percent of Americans who have a disability, 13 percent of which experience mobility issues, such as walking or climbing stairs, according to the Centers for Disease Control. The share of people with disabilities is higher among women and people of color. One in four women have a disability and three in 10 non-Latinx Black people have a disability.