For the past 27 years, Title III of the Americans with Disabilities Act (ADA) has given people with disabilities the legal right to gain access to “public accommodations,” – places that are generally open to the public. As a result, hard-fought lawsuits filed under Title III have opened vast areas of community life to millions of Americans with disabilities for the first time – education, employment, healthcare facilities, parks, businesses, and houses of worship, to cite just a few examples.
The ADA Education and Reform Act of 2017 would bring this history of progress to an effective standstill. It would prohibit people with disabilities from filing lawsuits to enforce Title III of the ADA without first overcoming a series of exacting, time consuming barriers.
For example, under the proposed law a wheelchair user who is unable to be seen at a medical facility because it has no accessible entryway would not be allowed to go to court to seek enforcement of Title III without first providing the facility’s owner with a written notice of the problem and the specific sections of the ADA that are violated. They would then have to wait 60 days to see whether the owner took any steps to fix the problem. If, in the interim, the owner provided a written description of how they planned to address the violation, the wheelchair user would then have to wait an additional 120 days before filing a complaint with a court.
Essentially, the law would impose a six month waiting period before Title III could be invoked to address an access issue at any public accommodation – which, in the case of the sole medical facility in a rural area, for example, is long enough for a cancer patient who uses a wheelchair to die.
The ADA Education and Reform Act has been floating around Congress for a few years. We wrote about an earlier version a year ago but little action was taken until this fall, when the House judiciary committee approved the legislation, meaning that it can now be scheduled for a vote by the full House at any time.
In moving this legislation forward the judiciary committee ignored pleas from more than 230 disability rights organizations that oppose the proposed law. As of now, the bill has 81 cosponsors in the house, including Kathleen Rice, the sole sponsor from New York.
The States Jump on Board
State legislatures are also taking actions that discourage or limit the ability of people with disabilities to go to court to enforce their right to have access to public accommodations. A bill introduced in the California legislature earlier this year would make a person with a disability wait six months before filing an access-related complaint against a business and then delay any legal action indefinitely as long as the business makes a “good faith effort” to remedy the problem.
A Minnesota law passed last year encourages someone with a disability to notify a business of an ADA violation before going to court and provides a sample form that can be used, but does not require a waiting period before a lawsuit may be filed. At the other end of the spectrum, earlier this year Florida enacted a law that gives a public accommodation up to ten years to provide access to people with disabilities before they may be sued.
Supporters of these laws say they are needed to stop frivolous ADA lawsuits. They are reacting to complaints from business owners and widespread news stories about lawyers who file hundreds or thousands of claims against businesses under Title III of the ADA. But, as these very same stories illustrate, courts are well equipped to dismiss frivolous lawsuits.
If widespread ADA lawsuit abuse is, as some claim, “an extortion scheme . . . with a perfected business plan executed by unethical attorneys,” there are plenty of remedies available that do not punish people with disabilities, the group that the ADA was created to protect. In addition to courts dismissing these cases – which is a common occurrence – attorneys who file frivolous lawsuits can be sanctioned and, if found to be engaged in actual extortion, can be charged with crimes under state and federal laws.
Furthermore, Title III of the ADA includes protections for business owners, exempting them from having to make accommodations that would pose an undue hardship, specifically one that would cause “significant difficulty or expense” given their financial resources, number of employees, or operations. These are broad protections that were deliberately included in the ADA with consultation from the U.S. Chamber of Commerce for the express purpose of protecting small businesses from being harmed by Title III.
Creating onerous, difficult, exacting, time consuming barriers for people with disabilities to jump over before they can file a lawsuit to enforce the requirements of the ADA is akin to burning down your house to get rid of a few cockroaches. There is simply no justification for making it difficult or impossible for people with disabilities to assert their civil rights in order to discourage bad actors.