URGENT ACTION NEEDED TO PRESERVE THE ADA

Submitted by Kevin Williams on February 17, 2018 - 12:46pm

URGENT ACTION NEEDED TO PRESERVE THE ADA

 

Submitted by Kevin Williams on February 16, 2018 - 1:59pm

 

URGENT ACTION NEEDED TO PRESERVE THE ADA

H.R. 620 passed the House of Representatives on February 15, 2018, by a vote of 225 to 192, and it will next be voted on by the Senate. Given the current political climate, and despite all of our efforts to prevent these types of laws from chipping away at the rights of people with disabilities in the past, this law is very likely to pass. We must stop this! Call or write to your Senator or all Senators as soon as possible and provide the following information:

The so-called "ADA Education and Reform Act of 2017," says that places of public accommodation no longer have to be proactive and make sure that they are accessible to people with disabilities. Instead, a business can remain inaccessible to the public until a person with a disability who has been denied access jumps through multiple hoops to notify the business that it is violating the Americans with Disabilities Act (“ADA”) and then waits up to 6 months for the business to make "progress" in fixing the problem. These notice requirements and the vagueness of "progress" means that it will be months before people with disabilities can see the doctor, buy a cake, or eat at a restaurant with friends. This bill is a travesty and upends the intent and purpose of the ADA. No other individuals protected by our civil rights laws are treated this way and individuals with disabilities should not have to bear the burden of asking a business not to discriminate against them before the business comes into compliance. It is unacceptable.

Many people want to know exactly what this bill does. There are other onerous provisions, but, most importantly, in its current form, it does the following (the text has been modified slightly to make it understandable, but the following provides language that comes straight from the bill itself; the text that is bolded has been bolded by CCDC).

WHAT THE BILL DOES:

• It changes the remedies section of Title III of the ADA so that neither the Department of Justice (“DOJ”) nor private individuals aggrieved by the failure to remove barriers that create inaccessibility in existing facilities and/or their attorneys may file a lawsuit against any existing public accommodation unless:

o that person has provided to the owner or operator of the public accommodation a written notice specific enough to allow such owner or operator to identify the barrier; and

o during the period beginning on the date the notice is received and ending 60 days after that date, the owner or operator fails to provide to that person a written description outlining improvements that will be made to remove the barrier; or

o if the owner or operator provides the written description (as described above), the owner or operator fails to remove the barrier or to make substantial progress in removing the barrier during the period beginning on the date the description is provided and ending 120 days after that date.

• SPECIFICATION OF DETAILS OF ALLEGED VIOLATION.—The written notice required (as described above) must also specify in detail the circumstances under which an individual was actually denied access to a public accommodation, including the address of property, the specific sections of the Americans with Disabilities Act alleged to have been violated, whether a request for assistance in removing an architectural barrier to access was made, and whether the barrier to access was a permanent or temporary barrier.

WHY THIS IS WRONG?

• The ADA has been in existence for nearly 28 years, and places of public accommodation have had all of that time to come into compliance. According to the DOJ, “The obligation to engage in readily achievable barrier removal is a continuing one. Over time, barrier removal that initially was not readily achievable may later be required because of changed circumstances.” In addition, it says, “The ADA is geared to the future -- its goal being that, over time, access will be the rule, rather than the exception. Thus, the Act only requires modest expenditures, of the type addressed in [the regulations], to provide access to existing facilities not otherwise being altered, but requires all new construction and alterations to be accessible.”

• The whole purpose of the existing facilities statute and regulations was designed to ensure that public accommodations would take steps over time since the ADA was enacted to become accessible. All that is required is what is “readily achievable,” which is defined as “easily accomplishable and able to be carried out without much difficulty or expense.” So the kinds of things that public accommodations were supposed to do over more than 27 years were things like installing ramps, making curb cuts in sidewalks and entrances, repositioning shelves, installing accessible door hardware, installing accessible parking spaces, installing grab bars in toilet stalls, etc. Why is Congress trying to give places of public accommodation a free pass for the simple things they were supposed to be doing over all these years?

• If this bill passes, all of the places of public accommodation that have not done anything for over 27 years to come into compliance with the ADA, will have no incentive whatsoever to bring their facilities into compliance until an individual with a disability goes through the complicated steps outlined in the bill that was passed out of the House.

• It is completely inappropriate have a requirement like this in any civil rights statute protecting any group of individuals.

• There is no definition for “substantial compliance.” One could easily lose a lawsuit later filed because the court determines that the place of public accommodation wrote back to the individual with a disability claiming it was in “substantial compliance” with the ADA in removing the barrier. This becomes yet another burden that people with disabilities must overcome.

• For 27 years, individuals with disabilities have been able to bring lawsuits against places of public accommodation that are existing facilities. These cases are not easy to bring already because of all of the complicated burdens of proof required to prove that removal of the barrier is readily achievable. Often, courts require expert witnesses to testify regarding whether removal of a barrier is “easily accomplishable without much difficulty or expense.” This can be very costly for an individual with a disability. The new conditions this law places on individuals with disabilities makes it even more complicated and places additional burdens on individuals with disabilities.

• This new requirement or a letter requires that the letter must contain all of the appropriate information and be provided in exactly the appropriate manner outlined in the new law.

• After waiting 27 years for places of public accommodation to take steps to make their facilities accessible, this new law would require individuals with disabilities now to wait 60 days for the owner or operator to provide a written description outlining improvements that will be made to remove the barrier, or, if the owner or operator provides that written description, the individual with a disability must wait 120 days, after already waiting 60 days, to find out if the owner or operator has removed the barrier to accessibility or made “substantial progress” in removing the barrier. (Even this isn’t clear in the way the bill is drafted. It says “120 days after [] date” “the description is provided[.]” It is unclear which “description” the bill references: Is it the written description provided by the individual with a disability, or the written description that must be provided by the owner or operator of the place of public accommodation.

• Here is why going through the steps creates enormous barriers for people with disabilities:

o Places of public accommodation are businesses that can afford lawyers who can understand all of the terminology and nuances of the terms used in this new legislation. Individuals with disabilities usually cannot afford lawyers and some may not be able to understand all of these additional obligations. The bill does not provide any free legal assistance to individuals to be able to negotiate all of the steps necessary before filing a lawsuit.

The individual with a disability must provide “written notice,” which is also undefined. For example, will an email message suffice? Or must an individual with a disability go to the great lengths and expense of sending a certified letter with a return receipt requested?

o The individual with a disability, in the written notice, must be able to track down the owner or operator of a place of public accommodation. This is not something that is easy to do for an individual. Usually, the technical skills of a lawyer are needed to make sure the proper entity or entities are identified. Prior to this written notice requirement, the assistance of an attorney who could recover fees if the individual with a disability bringing the lawsuit was the prevailing party. Nothing in this new law discusses whether following all of these new procedures would allow recovery of attorneys’ fees if an individual with a disability wanted to bring a case against an existing facility public accommodation. The lack of availability of attorneys has already allowed many existing facilities to fail to comply with the ADA for over 27 years. This change in the law may cause fewer attorneys to be able to assist. Again, this legislation gives places of public accommodation that have not complied with the law a free pass for not doing so.

o The individual with a disability, in the written notice, must provide information “specific enough to allow such owner or operator to identify the barrier[.]” The new law does not give any guidance on how much information is “specific enough.” This provides yet another hurdle for an individual with a disability to overcome.

o The written notice “must also specify in detail the circumstances under which an individual was actually denied access to a public accommodation[.]” The new law does not explain how much detail is required to be specified, what it means to be “actually denied access to a public accommodation[.]” Does this mean that the individual with a disability must show that he or she was completely denied the ability to access a place of public accommodation, or does it mean, as it should, that an individual with a disability was denied access to some “goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation” as the statute requires. For example, if the individual with a disability alleges that the service counter was too high, is that sufficient to show an actual denial of access to a public accommodation? The individual with a disability was able to get into the place of public accommodation, but was not able to use some part of the place of public accommodation that might be required under the existing facilities rules to have been made accessible.

o Finding the address of the property, under most circumstances, should not be difficult. Nevertheless, there are cases in which an individual with a disability could not access a place of public accommodation, for example, because there was no accessible parking, and the individual with a disability cannot actually find the address of the place of public accommodation.

o The new law requires an individual with a disability to put in the written notice “the specific sections of the Americans with Disability Act alleged to have been violated[.]” The statute and the regulations under the ADA are complicated and difficult to navigate. See 42 U.S.C. § 12182 (describing numerous ways in which an individual with a disability may be discriminated against); 28 C.F.R. § 36.304 (providing examples of steps to remove barriers, the obligations regarding the order of barrier removal about which the individual with a disability but have no information, but the place of public accommodation would; describing the relationship to alterations requirements; discussing how the “safe harbor” provision applies; providing timing of the effective dates of different regulations; and other lengthy provisions). The new law does not explain if the individual with a disability would be required to cite to the specific provision in the statute or the regulations being violated using citations to the law or regulations. For many individuals with disabilities, this again would require hiring the services of a lawyer, which the vast majority of people with disabilities cannot afford.

o The new law requires that the individual with a disability specify in the written notice a brand-new obligation never before seen in the ADA. The individual with a disability must include in the written notice “whether a request for assistance in removing an architectural barrier to access was made[.]” This portion of the new law demonstrates ignorance of the many types of barriers that individuals with disabilities face that make it impossible for them to request assistance. For example, inaccessible parking may cause an individual with a disability to simply drive away because there is no way to park. Depending on the nature of the disability and the resources of the individual, the individual may not have the ability to try to call or contact the owner or operator of a place of public accommodation and request that particular parking accommodations be made. Another example is if the front door is inaccessible, and it may have been readily achievable to make it accessible over 27 years, again, the individual with a disability may have no way of contacting the owner or operator of the place of public accommodation. There are numerous examples of types of barriers that would prevent an individual with a disability from making the “request” required in the written notice. Also, there are many barriers to accessibility that are highly unlikely to be able to be removed even if a request is made. Inaccessible parking, once again, demonstrates this. It is unclear how the owner or operator of a place of public accommodation would be able to install an accessible parking space or make parking accessible for the individual even if her request is made. This provision seems punitive against individuals with disabilities. Again, no other individual who falls under a protected status under civil rights laws has to demonstrate he or she made a request that the place of public accommodation solve the discriminatory problem. o In the written notice, the individual with a disability must identify “whether the barrier to access was a permanent or temporary barrier.” These terms are not defined anywhere in the new law or in the ADA. It is entirely unclear how an individual with a disability would know if a barrier to access was permanent or temporary. Again, inaccessible parking is a good example. It is possible that some public accommodation marks off accessible spaces for certain events or purposes, but not for others. If an individual with a disability goes to that public accommodation one time and does not find accessible parking, how would the individual know if the barrier was permanent or temporary? This language is extremely vague.

Tax incentives and tax deductions have been available, including specific incentives and deductions for barrier removal on an annual basis for places of public accommodation since the passage of the ADA. See https://www.ada.gov/archive/taxpack.pdf; see also 26 U.S.C. § 44 (Expenditures to provide access to disabled individuals); 26 U.S.C. § 190 (Expenditures to remove architectural and transportation barriers to the handicapped and elderly). To the extent Congress has taken any action to eliminate these tax credits and deductions for businesses to provide incentives to become more accessible, this too is harmful to both individuals with disabilities and those businesses who benefit by the income received from such individuals.

The argument that fivolous ADA lawsuits are an ADA issue that needs to be fixed by this kind of legislation is itself a frivolous argument. These lawsuits are, instead a court problem. It is unethical under Colorado law to bring a frivolous lawsuit, and any lawyer or individual who does so can be required by the court to pay the fees and costs of the other side. Colo. Rev. Stat. § 13-17-102(4).Rather than creating additional burdens for people with disabilities and giving places of public accommodation a 27 year free pass to avoid the law they should have complied with for over 27 years, attention should be focused on stopping these few bad attorneys. Punish them, not people with disabilities. President H.W. Bush, and the Congress in 1990 knew what they were doing when they enacted the ADA. Nothing has changed that.


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1 Appendix B to Part 36 -- Preamble to Regulation on Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities (Published July 26, 1991).


2 28 C.F.R. § 36.104 (Definition of "readily achievable").


3 28 C.F.R. § 36.304 (providing examples of what the DOJ considers to be steps to remove barriers).


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