Saved: The Americans With Disabilities Act—For Now

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Sen. Tammy Duckworth Saves the Americans With Disabilities Act—For Now

Apr 3, 2018, 12:19pm Robyn Powell
Full article

HR 620 is an assault on disability rights and completely upends enforcement of the ADA

Last week, Sen. Tammy Duckworth (D-IL) and 42 of her Democratic Senate colleagues wrote to Majority Leader Mitch McConnell (R-KY) pledging to block a vote on the ADA Education and Reform Act (HR 620). Passed in the U.S. House of Representatives in February, HR 620 would devastate the Americans with Disabilities Act of 1990 (ADA) by undermining enforcement provisions that safeguard accessibility in public accommodations.

Forty-three senators committing to oppose a Senate version of HR 620 is enough to filibuster the legislation, making it unlikely that a vote will go to the floor at this time. This, advocates say, warrants a celebration.

As I have explained previously for Rewire.News, HR 620 is an assault on disability rights and completely upends enforcement of the ADA. Since the ADA’s passage nearly 28 years ago, people with disabilities have enjoyed two means for enforcing their rights under the ADA if a business is inaccessible: They can bring a lawsuit in court or file a complaint with the U.S. Department of Justice (DOJ), which will investigate the alleged accessibility barrier and determine if the business violated the ADA. If the DOJ decides that the business did violate the law, the agency may sue the business on the person’s before or enter into mediation with the complainant and business. Both means of enforcement generally allow for a swift resolution.

However, if HR 620 becomes law, enforcement of the ADA will become burdensome for people with disabilities. This, in turn, will likely lead to less accessibility in public accommodations.

“HR 620 would gut the Americans with Disabilities Act (ADA) by eliminating incentives for businesses of any size, including the largest corporate hotel, restaurant and movie theater chains, to make their facilities accessible to people with disabilities,” Duckworth and her colleagues wrote.

“Instead, businesses would be encouraged to avoid complying with the nearly 30-year-old law until people with disabilities notify them that they are unable to enter their facility. Businesses would be allowed to discriminate for at least 120 days following notification, and they would only need to make ‘substantial progress’ towards accessibility to make their facility ADA-compliant. That would set a dangerous precedent by forcing Americans living with disabilities to personally experience the humiliation of discrimination—and then be required to educate those who violate their civil rights—before having violations of their civil rights remedied,” the letter continued.

Proponents of HR 620 say that changes to the ADA are needed to prevent so-called drive-by lawsuits, where attorneys and people with disabilities use the ADA for their own monetary gain by filing frivolous claims. Yet, as the Democrats noted in their letter, HR 620 will do nothing to stop such cases because “these private actions seeking damages are filed pursuant to specific State laws that unlike title III of the ADA, authorize monetary damages. HR 620 would make no change to those state laws and therefore fails to address lawsuits seeking damages.”

Duckworth has been a staunch opponent of HR 620, writing in an op-ed in the Washington Post in October 2017 that this legislation would make people with disabilities “second-class citizens again.” For Duckworth, a disabled veteran and wheelchair user, accessibility is deeply personal.

The ADA was passed in 1990 with bipartisan support and involved significant compromise between the business and disability communities. In fact, during the drafting of the ADA, people with disabilities gave up the right to seek monetary relief for ADA violations as part of negotiations. The ADA also allows for exceptions if remedying accessibility barriers is too costly for businesses. In addition, businesses can receive tax incentives for making their public accommodation accessible.

“Congress carefully crafted title III of the ADA to make sure private enforcement actions prioritize achieving readily accessible barrier removal and are an affordable avenue for Americans with disabilities to seek relief. The expectation was that businesses would make themselves accessible before people with disabilities showed up at their place of business, rather than waiting until receiving a notice that people with disabilities have been excluded before starting to think about complying with the law,” wrote Duckworth and her colleagues.

Disability rights advocates saw the letter from Duckworth and her colleagues as a victory. “This letter is a huge win in the fight to protect the ADA. We are incredibly grateful to Senator Duckworth for her leadership on this issue, and for authoring a letter that so clearly states how dangerous and misguided bills like H.R. 620 are—and how important the ADA is,” the National Council on Independent Living (NCIL) said in a statement.

With commitment from nearly all Democratic senators—except Sens. Joe Donnelly (D-IN), Heidi Heitkamp (D-ND), Joe Manchin (D-WV), and Bill Nelson (D-FL)—to oppose HR 620, Duckworth has gained enough votes to filibuster any attempt to bring the bill to the Senate floor.

Although disability rights advocates are celebrating this achievement, they are well aware that they are likely to face more fights in the future. HR 620 is just one of many recent attacks on disability rights by the GOP. Since President Donald Trump took office, people with disabilities have had to continuously fight against threats to nearly every facet of life. Indeed, the U.S. Department of Education’s Office for Civil Rights recently began dismissing hundreds of disability-related claims, following new agency guidance that requires the dismissal of cases from those who file a “pattern” of complaints.

“[I]f history has taught us anything, we know the efforts to roll back our rights are not over. Bills like this have been introduced for years, and the business community is unlikely to stop trying to chip away at the ADA,” NCIL stated.