The Americans with Disabilities Act (ADA), a historic piece of civil rights legislation for individuals with disabilities, was passed 27 years ago this week. Since that time, individuals with disabilities have been able to seek enforcement of the law to ensure that they have access to public spaces.
The ADA helps to curb the discrimination faced by people with disabilities but Congress is currently considering the ADA Education and Reform Act, a bill that would change the ADA: granting more leniency to businesses, and prolonging the process of remedying ADA failures by these businesses. The bill is controversial and many advocates for people with disabilities are speaking up against it.
Supporters of the bill seek to remedy the issue of “drive by” lawsuits, a term used to describe when a person goes to a business for the singular purpose of filing a lawsuit under the ADA. These lawsuits are seen by many as solely efforts of financial gain at the expense of businesses, instead of efforts to resolve legitimate barriers to access for individuals with disabilities. While the existence of such lawsuits is problematic, there is no consensus on the best way to address this issue.
The bill would allow business owners a “pause in litigation,” giving them 60 days to acknowledge their violation of the ADA, and then another 120 days to make “substantial progress” towards remedying the issue. The bill, currently being considered in the house, has 14 co-sponsors from both sides of the aisle. Although not an issue that is divisive along party lines, the bill does not draw universal support because of its civil rights and practical implications.
While the supporters of the bill seek to protect businesses, its opponents strive to protect the civil rights of individuals with disabilities. The ADA has been recognized as a crucial step towards inclusion and civil rights for individuals with disabilities, and its importance for individuals with disabilities cannot be overstated. It would be reasonable to assume that individuals with disabilities would support legislation which strengthened the ADA—the very legislation that guarantees them civil rights. Yet, individuals in the disability community and their advocates are opposed to the poorly-named ADA Education and Reform Act.
As a reminder, the ADA does not require the payment of monetary damages to individuals with disabilities when a violation occurs. Rather, it is a handful of states that have laws which allow monetary damages, which is how “drive by” lawsuits became profitable for plaintiffs in those states.
This proposed law would amend the ADA by requiring an individual with a disability to submit a special notice to the business. The individual would have to consult a legal adviser to craft the notice, and include the specific sections of the ADA that are being violated. Thus, the burden rests on the individual with the disability, once they are denied access to a public accommodation, to have extensive knowledge of the ADA and to seek legal counsel to provide this special notice to the business.
Once the notice has been provided to a business, the business has nearly six months to make any progress regarding the violation, even when the issue would not take much time or money to fix. This is the case with ADA concerns, because the ADA already contains provisions which protect businesses, only requiring that changes be made when they are readily achievable and can be done “without much difficulty or expense.” Even then, there exist extensive resources for business owners to make these changes, including a Department of Justice ADA hotline and website, and ten federally funded ADA centers which provide resources and training in every state.
The Consortium for Citizens with Disabilities (of which UCP is a member) opposes the bill:
“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. Such a regime is absurd, and would make people with disabilities second-class citizens.”
In short, this bill is an inefficient means to address the issue of “drive by” lawsuits, and creates substantial barriers to the enforcement of the civil rights of the world’s largest minority group, individuals with disabilities.