Legislation Would Undermine the Rights of the Disabled to Have Full Access

Earlier this year, two conservative members of Congress introduced a bill that would undermine enforcement of the accessibility provisions of the Americans with Disabilities Act. The bill, HR 3590, would require that people with disabilities bringing a civil suit over an inaccessible business allow a 90-day grace period, during which businesses will purportedly have a chance to rectify the problem.

The bill’s co-authors, Reps. Clay Shaw (R-Fla.) and Mark Foley (R-Fla.) argue that the measure will prevent frivolous lawsuits brought by lawyers seeking to enrich themselves instead of helping the disabled. By pulling the frivolous lawsuit card, as many other special interests so often do when faced with increased public accountability via civil liability, these lawmakers are really covering up the true purpose of the bill: It is intended to help businesses circumvent the ADA at the expense of the disabled population in the U.S.

Generally misunderstood, the ADA was passed in 1990 in recognition of widespread discrimination against the disabled, with particular emphasis on the lack of physical access to public facilities. The Title III provisions, which affect private enterprises such as bars and retail stores, made it clear that all businesses that can do so without “undue hardship” must provide access to the disabled population. Failure to comply would expose them to civil liability.

Unlike Title I, which requires people with disabilities to exhaust their “administrative remedies” before bringing a lawsuit, failure to satisfy Title III triggers virtually immediate liability. Congress created the provision knowing it would ensure that access became the rule, not the exception.

From this point on, American businesses would be presumed to know their doors must be open to the disabled. If businesses didn’t have to respond until challenged, they would wait until the first lawsuit was filed before doing anything. And, of course, only a small minority of people with disabilities would ever learn they had a right to access.

Congress wisely applied the venerated legal principle of ignorance of the law not being an excuse to relieve the marginalized disability population of the burden of educating businesses on access laws.

This proposed measure would remove the teeth from the ADA. It would place the yoke of yesterday on the weary shoulders of Americans with disabilities, forcing them to ask businesses politely to give them rights they now have.

Cumbersome notification requirements only will further impede the national trend toward accessibility, encouraging businesses to drag their feet and dicker over the specifics of access. This is unnecessary. Businesses already have endless options available to them to help them with ADA compliance if they really want to be accessible. They can contact the U.S. Department of Justice, their state vocational rehabilitation agency or any number of local disability resources centers.

It is not surprising that there are lawyers out there trying to make a buck on the ADA, just as there are unscrupulous lawyers filing meritless claims in other legal contexts. But the sheer volume of ADA claims doesn’t prove anything.

Lawyers may be “taking advantage” of people with disabilities in certain specific instances, and that is unfortunate. But lawyers also have done a great deal to help people with disabilities when nobody in Congress seemed to care much about them.

Businesses know today that they must be accessible or face serious consequences. While a high volume of litigation may mean we need to explore new reforms or perhaps censure frivolous claims, this bill isn’t the answer. Full participation in society is a right, not a privilege subject to 90-day notification.