The ADA Education and Reform Act of 2017: When Businesses are Prioritized Over Civil Rights

By: Marissa Ditkowsky

A bill introduced in the House of Representatives that would alter the Americans with Disabilities Act enforcement policies for public accommodations owned by private entities is gaining traction.[1] The bill has been marked up in committee, and is already receiving considerable support.[2] The bill currently has 58 bipartisan co-sponsors.[3] The trajectory for this bill remains unclear, but it is nonetheless imperative to understand its potential implications.

Title III of the Americans with Disabilities Act addresses accessibility of public accommodations provided by private entities.[4] Public accommodations run by private entities cannot discriminate against patrons on the basis of disability “in the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations by any person who owns, leases (or leases to), or operates a place of public accommodation.”[5] Public accommodations include most hotels and motels, restaurants and bars, entertainment locations, sales and rental establishments, places of public gathering, stations used for public transportation, service establishments, public displays or collections, places of recreation, private schools, social service center establishments, and places of exercise or recreation.[6]

Currently, Title III allows a court to provide injunctive relief for any successful civil action brought by an individual.[7] This system encourages owners to proactively comply with ADA standards or suffer the risk of a potential lawsuit.

The ADA Education and Reform Act would require that public accommodations be provided with notice of transgressions and a “cure period” to address architectural barriers before an individual with a disability can file a civil action.[8] Further, in order to file the civil action, either 1) within 60 days of receipt of notice, the owner fails to provide a written description outlining improvements that will be made to remove the barrier, or 2) if the writer description is provided, the owner “fails to remove or make substantial progress in removing” the barrier 120 days after the description is provided.[9] That provision would provide the owner with 180 days, or six months, from which the owner received the initial notice to, at a minimum, make “substantial progress.”[10] It is also unclear what would qualify as “substantial progress,”[11] but it is certainly inadequate. Complete removal of the barrier is not required by the bill as written.[12] The bill could free owners from any liability to complete efforts to remove barriers so long as the owners have met the “substantial progress” threshold within 180 days. There is no clarification as to how long the owner has after such time to remove the barrier completely, nor is there an exception to bring a civil action should the barrier not be removed at all after that 180-day period. The loophole to removing barriers is simply to make “substantial progress” in the 180-day period. The term “substantial progress” could also easily be interpreted to free owners that have made minimal efforts to cure the barriers from liability.

Not only could this practice substantially delay access to public accommodations for people with disabilities, but it also shifts the burden on the individual with a disability.[13] The bill could also dis-incentivize public accommodations from preemptively complying with the ADA until an individual with a disability approaches their business and provides such notice.

The bill’s passage would compel the Judicial Conference of the United States to develop a model program to promote the use of alternative dispute resolution in resolving architectural barrier claims.[14] The bill also suggests a stay of discovery during mediation as one alternative dispute resolution mechanism.[15] It is unclear what Congress has in mind, and whether it is looking at a voluntary arbitration process or a mandatory process. However, regardless, it appears to be a step in the direction of further disadvantaging individuals with disabilities.

Although, on its face, mediation appears to be a more efficient and less costly mechanism to resolve disputes, privatizing the ADA complaint or any civil rights processes poses a whole host of issues surrounding objectivity and lack of access to the courts. Mandatory arbitration clauses, for example, are highly controversial. Although mandatory arbitration is viewed as a method of efficiency and to save companies from costly litigation, companies are able to hire and reuse arbitrators, a lack of the development and improvement of public law due to the privacy of such decisions, and consumers, employees, and other plaintiffs are unable denied the right to a trial by jury.[16]  The absence of effective discovery, which Congress has explicitly suggested in this bill, also places individuals with disabilities at a disadvantage due to a substantial lack of resources and inability to assess evidence the opposing party has collected.[17]

As Representative Jim Langevin (D-RI) stated about the bill:

“H.R. 620 decimates the underlying intent of the ADA by allowing entities to wait before addressing barriers to access. It would roll back years of progress, and it sends a message to the disability community that we are not worthy of being included like everyone else. . . . I remember what our country was like before the ADA. I do not wish to go back. ”[18]

Although this bill might eventually die in the House of Representatives, keep watch of this bill as it gains traction.

 


[1] ADA Education and Reform Act of 2017, H.R. 620, 115th Cong. (2017).

[2] See generally 163 Cong. Rec. H7217-03 (daily ed. Sept. 8, 2017); 163 Cong. Rec. D936-01 (daily ed. Sept. 7, 2017).

[3] H.R.620 – ADA Education and Reform Act, Congress.gov (last visited Sept. 28, 2017), https://www.congress.gov/bill/115th-congress/house-bill/620/cosponsors?q=%7B%22search%22%3A%5B%22hr+620%22%5D%7D&r=1.

[4] Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12181-12189 (2017).

[5] 42 U.S.C. § 12182(a) (2017).

[6] 42 U.S.C. § 12181(7) (2017).

[7] 42 U.S.C. § 12188 (2017).

[8] ADA Education and Reform Act of 2017, H.R. 620, 115th Cong. § 3 (2017).

[9] Id.

[10] See id.

[11] See id.

[12] Id. (neglecting to include a follow-up requirement if the owner only makes “substantial improvements” after the 120-day period).

[13] Id. (adding a requirement of extremely specific notice from an individual with a disability before the individual can file a civil suit).

[14] ADA Education and Reform Act of 2017, H.R. 620, 115th Cong. § 5 (2017).

[15] Id.

[16] Reginald Alleyne, Arbitrators’ Fees: The Dagger in the Heart of Mandatory Arbitration for Statutory Discrimination, 6 U. Pa. J. Lab. & Emp. L. 1, 21-2 (2003).

[17] Id.

[18] 163 Cong. Rec. H00000-27 (daily ed. Sept. 14, 2017) (statement of Rep. Langevin).