From the ACB chat list. We're definitely under attack!
Carl Jarvis
---------- Forwarded message ----------
From: "Demaya, Diego via acb-chat" <acb-chat@xxxxxxxxxxxx>
Date: Mon, 05 Jun 2017 15:56:59 +0000
Subject: [acb-chat] The Americans With Disabilities Act Is Under
Attack in Congress - Rewire
To: "General discussion list for ACB members and friends where a wide
range of topics from blindness to politics, issues of the day or
whatever comes to mind are welcome. This is a free form discussion
list." <acb-chat@xxxxxxxxxxxx>, "acbt@xxxxxxxxx" <acbt@xxxxxxxxx>,
"hcb-l@xxxxxxxxxxxxxxx" <hcb-l@xxxxxxxxxxxxxxx>
Cc: "Demaya, Diego" <Diego.Demaya@xxxxxxxxxxxxxxxxxxx>
The Americans With Disabilities Act Is Under Attack in Congress
May 30, 2017, 9:47am
Robyn
Powell<https://urldefense.proofpoint.com/v2/url?u=https-3A__rewire.news_author_robyn-2Dpowell_&d=DwMFaQ&c=cBOA5YEoZuz9KdLvh38YxdrPtfJt83ckXekfBgq5xB0&r=CK8oOj7-JYZnTDmB5orNTVZXar6NrsnGtGHfQ5m79Do&m=zA5asuEvWh9dlTO2X3UgE5AWib7nRV8fEXacuUtioCU&s=0xK2bF5uDLDC5AxTVKDk4CUdKFwIfp5Mw857819G64U&e=>
The House Judiciary Committee is currently considering imposing
significant limitations to the ADA through the passage of the ADA
Education and Reform Act of 2017.
[https://reujq2sar5z38mfxc343rf51-wpengine.netdna-ssl.com/wp-content/uploads/2017/05/shutterstock_582799705-740x525.jpg]Never
in my life as a disabled woman have I been so terrified of losing my
civil rights as I am now.
Shutterstock<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.shutterstock.com_image-2Dphoto_sign-2Dwheelchair-2Daccessibility-2D582799705-3Fsrc-3DVTJpCmwEa5IuQ5nibAdT7A-2D1-2D33&d=DwMFaQ&c=cBOA5YEoZuz9KdLvh38YxdrPtfJt83ckXekfBgq5xB0&r=CK8oOj7-JYZnTDmB5orNTVZXar6NrsnGtGHfQ5m79Do&m=zA5asuEvWh9dlTO2X3UgE5AWib7nRV8fEXacuUtioCU&s=XpVXGA70jOCAodwiDKrWaFmY3UjFHIOTqj4_qnVr-Vs&e=>
On July 26, 1990, George H.W. Bush signed the Americans With
Disabilities Act (ADA) into law,
proclaiming<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.eeoc.gov_eeoc_history_35th_videos_ada-5Fsigning-5Ftext.html&d=DwMFaQ&c=cBOA5YEoZuz9KdLvh38YxdrPtfJt83ckXekfBgq5xB0&r=CK8oOj7-JYZnTDmB5orNTVZXar6NrsnGtGHfQ5m79Do&m=zA5asuEvWh9dlTO2X3UgE5AWib7nRV8fEXacuUtioCU&s=IUcVjG4zh0NRrBcvi7hAqrYXYCOQEnes7e70HeLTHcc&e=>,
“Let the shameful wall of exclusion finally come tumbling down!”
Although I was only 8 years old, I still remember its passage and the
increased accessibility that followed.
The ADA has both literally and figuratively opened countless doors for
people like me, by requiring entities that are open to the public—such
as restaurants, movie theaters, hospitals, hotels, and museums—be
fully accessible to people with disabilities. The ADA also requires
employers, as well as public and private entities, to provide
reasonable accommodations to people with disabilities and prohibits
discrimination based on disability.
Of course, passage of the ADA did not make ramps and elevators
magically appear; nor did it immediately halt discrimination against
people with disabilities. Progress takes time, which, as a wheelchair
user, I have witnessed firsthand. Indeed, for several years after the
law’s passage, my parents or I would always have to call places in
advance to make sure that they were wheelchair accessible. For years,
the answer was “no.” But times have changed, and now I no longer feel
I need to take these extra steps before leaving my home. Nearly 27
years after the passage of the ADA, I now expect that all businesses
will be accessible. And that is liberating.
While we surely have much further to go, the ADA has unequivocally led
to much greater inclusion and accessibility and far less
discrimination. Now, however, Congress is currently considering
imposing significant limitations to the ADA through the passage of the
ADA Education and Reform Act of
2017<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.congress.gov_bill_115th-2Dcongress_house-2Dbill_620&d=DwMFaQ&c=cBOA5YEoZuz9KdLvh38YxdrPtfJt83ckXekfBgq5xB0&r=CK8oOj7-JYZnTDmB5orNTVZXar6NrsnGtGHfQ5m79Do&m=zA5asuEvWh9dlTO2X3UgE5AWib7nRV8fEXacuUtioCU&s=ebTzZVr6hruJo68b1uT3WWwNxl5tMV1GF3FmuoNTVLk&e=>
(HR 620), sponsored by Rep. Ted Poe (R-TX).
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Currently, if a person with a disability encounters an accessibility
barrier at a business, they have two options: They can file a
complaint with the U.S. Department of Justice (DOJ), which will
investigate and decide if a violation has occurred. DOJ may enter into
mediation with the person and the business, which is a low-cost
approach to resolve ADA violations fairly quickly. DOJ may also sue
the business on the person’s behalf. Alternatively, people with
disabilities may file a lawsuit in court, bypassing DOJ altogether.
The cornerstone of current enforcement options is that the violation
can often be resolved swiftly.
If the ADA Education and Reform Act is passed, however, a person with
a disability would be required to give a written notice to a business
owner who has barriers to access. The business owner would then have
60 days to even acknowledge that there is a problem—and then another
120 days to make substantial progress toward correcting the violation.
In other words, people with disabilities would be forced to wait 180
days to enforce their civil rights.
The ADA Education and Reform Act is premised on trying to curb
“drive-by” ADA lawsuits: that is, frivolous lawsuits brought by
attorneys alleging ADA violations. Surely, serial litigators,
attorneys who simply bring lawsuits to line their pockets, must be
stopped. However, these bills are not the solution.
To be fair, I vehemently oppose frivolous ADA lawsuits, where people
seek to use the ADA for their own monetary gain. I cherish this law
and hate hearing that some misuse it. However, it’s important to note
that they are not as prevalent as some believe. An analysis of ADA
lawsuits in
2016<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.adatitleiii.com_tag_ada-2Deducation-2Dand-2Dreform-2Dact_&d=DwMFaQ&c=cBOA5YEoZuz9KdLvh38YxdrPtfJt83ckXekfBgq5xB0&r=CK8oOj7-JYZnTDmB5orNTVZXar6NrsnGtGHfQ5m79Do&m=zA5asuEvWh9dlTO2X3UgE5AWib7nRV8fEXacuUtioCU&s=Bhoho6DCCx4HZkWB6YRHX_kheKhzV_ZGXb7wYG_P2bs&e=>
identified just 12 individuals and one organization that have filed
more than 100 lawsuits each. But frivolous lawsuits are not an ADA
issue; they are a state and court problem. Indeed, ethics
rules<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.law.cornell.edu_rules_frcp_rule-5F11&d=DwMFaQ&c=cBOA5YEoZuz9KdLvh38YxdrPtfJt83ckXekfBgq5xB0&r=CK8oOj7-JYZnTDmB5orNTVZXar6NrsnGtGHfQ5m79Do&m=zA5asuEvWh9dlTO2X3UgE5AWib7nRV8fEXacuUtioCU&s=lnbcRmmt14kPMB2fn4dm_gRxNcss5usn9Q0nbWMMPWo&e=>
bar attorneys from bringing frivolous lawsuits. Rather than go after
people with disabilities, attention should be focused on stopping
these few bad attorneys.
Notably, passage of the ADA and ADA Amendments Act involved the
disability community and bipartisan lawmakers working together with
the business community. These “notification bills,” however, do not.
Rather, they are the result of business owners and their
lobbyists.<https://urldefense.proofpoint.com/v2/url?u=http-3A__poe.house.gov_2017_1_poe-2Dleads-2Dbipartisan-2Dlegislation-2Dto-2Dcurb-2Dabusive-2Dada-2Dlawsuits-2Dand-2Dimprove-2Dthe-2Dada&d=DwMFaQ&c=cBOA5YEoZuz9KdLvh38YxdrPtfJt83ckXekfBgq5xB0&r=CK8oOj7-JYZnTDmB5orNTVZXar6NrsnGtGHfQ5m79Do&m=zA5asuEvWh9dlTO2X3UgE5AWib7nRV8fEXacuUtioCU&s=QJxK5PXfagseqz2Ot_3m6S5e31wZlq4fy8CM5rn68Yg&e=>
The disability community is not interested in more lawsuits; we simply
want accessibility. There is no such thing as the “ADA police.”
Enforcement depends on people with disabilities who know their rights
to challenge violations. Filing lawsuits is timely and expensive.
Finding an attorney that is knowledgeable about the ADA is very
challenging. I say this because I believe it is fairly safe to assume
that there are far more ADA violations occurring than we will ever
hear of. As a disabled woman, I encounter violations daily.
Nevertheless, there’s a prevailing belief that ADA regulations are
overly technical and most alleged violations are “minor.” The
regulations concerning accessible parking spots are frequently used to
demonstrate how ADA regulations are too specific. What opponents don’t
understand is that the width of parking spaces matter for people with
disabilities who drive, such as myself. I drive a
wheelchair–accessible van. If someone parks too close, I am literally
stuck because no one besides me can drive my van. This has happened to
me more times than I count, leaving me stranded outside for hours,
until the person returns to their car.
Throughout the years, based on a belief that the ADA is being abused
and has become a money-maker, Congress has introduced a number of
“notification bills.” These bills are problematic and have been
strongly opposed by the disability community.
It is also important to dispel the myth that ADA lawsuits can be
profitable for plaintiffs; that is plain wrong. 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.
Settlements or court orders that involve money damages for
accessibility violations are based on state laws in a handful of
states, not the ADA. Therefore, adding a notice requirement before
people with disabilities can enforce their rights will do nothing to
prevent businesses from being subjected to money damages. Moreover, if
the accessibility violations in question are truly minor, as the
proponents of these bills claim, it would not be difficult for
businesses to fix the problem and resolve the issue quickly, with
minimal attorneys’ fees. Hence, the issue is not an ADA one.
In addition, it’s important to recognize that the ADA includes several
provisions that protect businesses from unreasonable requirements. For
example, the ADA does not require any action that would cause an
“undue burden” or that is “not readily achievable,” which is defined
as “easily accomplished and able to be carried out without much
difficulty or expense.”
Adding a notification requirement won’t make serial lawsuits go away.
Instead, it simply sends the message to business owners that they
don’t have to worry about complying with the ADA until they receive a
letter notifying them that they are discriminating against people with
disabilities. In other words, instead of complying, they can just
“wait and see” if they are caught.
The imposition of a months-long “waiting period,” during which a
business may continue to violate the law and deny access to people
with disabilities once it has received a notice that it is violating
the ADA, is simply not reasonable.
In short, the premise of bills like the ADA Education and Reform Act
is that businesses should not be responsible for knowing their
obligations to comply with a law that has been in effect for nearly
three decades, but people with disabilities should instead be
responsible not only for knowing the accessibility requirements of
that law, but also for determining when a business is not in
compliance and for knowing the specific requirements of the notice
that they must provide.
Establishing and running a business involves compliance with numerous
laws, including tax laws, property laws, health and safety laws,
environmental laws, civil rights laws, and many others. Compliance
with these legal obligations is part of the cost of doing business.
Business owners, and society as a whole, have had nearly 27 years to
become aware of the ADA. Indeed, I would guess that every business
owner knows at least one person with a disability and is at least
vaguely aware that the ADA exists. Moreover, there are plenty of
resources that provide information on ADA requirements to business
owners. Indeed, the DOJ offers free technical assistance as well as
several publicly available
publications<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.ada.gov_&d=DwMFaQ&c=cBOA5YEoZuz9KdLvh38YxdrPtfJt83ckXekfBgq5xB0&r=CK8oOj7-JYZnTDmB5orNTVZXar6NrsnGtGHfQ5m79Do&m=zA5asuEvWh9dlTO2X3UgE5AWib7nRV8fEXacuUtioCU&s=7_Gk_F01GnyIOwUXk5NGDHHzPUDiLHXhxbwq0xGAaf4&e=>.
In addition, there are ADA technical assistance
centers<https://urldefense.proofpoint.com/v2/url?u=https-3A__adata.org_&d=DwMFaQ&c=cBOA5YEoZuz9KdLvh38YxdrPtfJt83ckXekfBgq5xB0&r=CK8oOj7-JYZnTDmB5orNTVZXar6NrsnGtGHfQ5m79Do&m=zA5asuEvWh9dlTO2X3UgE5AWib7nRV8fEXacuUtioCU&s=q_ssaVZSrejkQ2H-IvFKXum7b6qQxjgeRTPtNoAXeIE&e=>
across the country that offer information, guidance, and training on
how to implement the ADA. There is simply no excuse for noncompliance
at this point.
The bill is currently in the U.S. House Judiciary Committee; it has 18
co-sponsors. Never in my life as a disabled woman have I been so
terrified of losing my civil rights as I am now. With the stroke of a
pen, much that the disability community has fought hard for could be
undone. What civil rights law will be on the chopping block next?
![https://reujq2sar5z38mfxc343rf51-wpengine.netdna-ssl.com/wp-content/uploads/2017/05/shutterstock_582799705-740x525.jpg]Never](https://reujq2sar5z38mfxc343rf51-wpengine.netdna-ssl.com/wp-content/uploads/2017/05/shutterstock_582799705-740x525.jpg]Never){kind=link}