The Quiet Attack on the ADA Making Its Way Through Congress

Protesters supporting people with disabilities gather outside the White House in Washington, May 15, 2017.

In the current political climate, the assault on Americans with disabilities is no longer limited to attempts to strip them of health care, take away the services millions need to live independently and to work, or make deep cuts to programs that help many make ends meet. Now a bill making its way through Congress threatens to roll back the civil rights of people with disabilities by exactly 27 years. The bill, misleadingly titled the ADA Education and Reform Act of 2017, would hack away at the Americans with Disabilities Act (ADA) of 1990, the landmark civil rights law that prohibits discrimination on the basis of disability and mandates that people with disabilities have “equal opportunity” to participate in American life.

The bill would roll back disability rights and inclusion

Prior to the Americans with Disabilities Act, it was far more arduous for Americans with disabilities to participate in mainstream society. Public places such as hospitals and restaurants were often inaccessible to people with disabilities, and these individuals had no recourse against the owners of these establishments who, in effect, barred them from entry. After the passage of the ADA, places of public accommodation—that is, privately owned, leased, or operated facilities—were required to take proactive steps to be reasonably accessible to people with disabilities.

Although the ADA has enabled people with disabilities to participate far more fully in public life, some businesses remain inaccessible because of architectural obstacles, such as inaccessible entrances, bathrooms too small to accommodate someone in a wheelchair, and lack of curb cuts, to name just a few. Fortunately, under Title III of the ADA, people with disabilities have the right to file lawsuits against proprietors of businesses that lack reasonable accommodations. Indeed, despite businesses’ obligation to take proactive steps towards accessibility, litigation has been the mechanism through which many gains for people with disabilities have been achieved since 1990. But the ADA Education and Reform Act, which has been met with deep opposition from the disability community, would fundamentally weaken this process in ways that would make it prohibitively burdensome for many people with disabilities to enforce their long-standing civil rights.

What the bill would do

The ADA Education and Reform Act would create onerous red tape for people with disabilities attempting to enforce their rights under the ADA. Specifically, the bill requires anyone seeking to file a lawsuit under Title III to first provide written notice to the business owners in violation of the law, citing very specific details regarding the provisions of the statute that apply to their particular case. Business owners would then have 60 days to acknowledge the violation and another 120 days to at least make “substantial progress” towards rectifying it. This means that under the bill, places of public accommodation—which have had nearly three decades to comply with the ADA—would have yet another six months just to begin to rectify their violations of the law. As the American Civil Liberties Union points out, under this bill, “Business owners can spend years out of compliance and face no penalty even after they receive notice, so long as the owners claim ‘substantial progress.’” People with disabilities, in turn, would have to wait at least that long to access justice.

The bill is based on exaggerated claims

This latest attempt to curtail the civil rights of people with disabilities was reignited by a popular “60 Minutes” segment alleging the widespread filing of frivolous Title III lawsuits by attorneys who spot ADA violations using, for example, Google Earth. The segment implies that people with disabilities have no complaints about the noncompliant establishments but that, because of these lawsuits, business owners end up with a bill that many of them cannot afford to foot. It’s important to note that under Title III, those in violation of the ADA do not have to pay any monetary damages, only attorney’s fees and injunctive relief, meaning business owners must remedy the violation.

So-called frivolous lawsuits, however, are nowhere near as pervasive as proponents of the ADA Education and Reform Act suggest. Proponents of the bill point to increases over the past several years in Title III filings, including a 37 percent uptick in 2016 compared with 2015. But a quick look at the numbers shows that this increase is easily explained by a small number of large-scale filers. In fact, just 12 individual attorneys and a single disability law firm were responsible for more than one-third of all Title III lawsuits filed in 2016, accounting for more than 100 cases each.

Even in the unlikely event that all of these large-scale filers’ lawsuits were indeed frivolous—which is disproven by the fact that many of them have brought to light very real violations of the ADA—they would hardly present an issue systemic enough to warrant federal intervention, particularly when such an intervention would gut a decades-old civil rights law. Additionally, protections against the filing of frivolous lawsuits are enshrined in existing ethics rules. As disability rights lawyer Robyn Powell notes, frivolous lawsuits can already be addressed through district courts, as well as by state bar associations.

What proponents of the ADA Education and Reform Act also seem to ignore is that Title III of the ADA was, in many respects, the product of a compromise between the disability community and business interests. As a result, businesses are only required to provide accommodations when doing so doesn’t present an “undue burden” and when they are “readily achievable”—that is, technically feasible and affordable. What’s more, there have long been in place federally funded resources to help businesses comply with the law, including ten regional centers that provide technical assistance and trainings in every state. And again, under the ADA, plaintiffs are unable to obtain monetary damages from businesses. Any settlements or court orders involving monetary damages are based on state laws, not the ADA.

Conclusion

Places of public accommodation have had a full 27 years to comply with Title III of the ADA. Yet, despite substantial gains since 1990 when the ADA was signed into law, American society is still rife with architectural barriers that prevent people with disabilities from fully participating in public life. The ADA Education and Reform Act all but condones the businesses that, nearly three decades after the ADA was enacted, have yet to comply. As the Consortium for Citizens with Disabilities has noted, there exists “no other law that outlaws discrimination but permits entities to discriminate with impunity” until after victims of that discrimination inform business owners that they’re breaking the law.

Eliza Schultz is the research assistant for the Poverty to Prosperity Program at the Center for American Progress. Rebecca Cokley is a senior fellow working on disability policy at the Center. Rebecca Vallas is the managing director of the Poverty to Prosperity Program at the Center.