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Republicans think disabled Americans are gaming the system, so they want to make the ADA harder to enforce

11 Jun

by Jake Flanagin –

The Judiciary Committee of the United States House of Representatives is considering a major reform of the American With Disabilities Act (ADA) of 1990—a federal law which prohibits discrimination against individuals with disabilities in the public sphere (at work, in schools, riding public transit, and in all spaces open to the general public, including privately-owned businesses). For example, under the ADA, businesses open to the public, such as restaurants or pharmacies, need to be wheelchair accessible.

The ADA Education and Reform Act of 2017 (HR 620) seems like a rather innocuous bill at first glance—it compels the Department of Justice to formulate a program that educates state and local officials and business owners on “strategies for promoting access to public accommodations for persons with a disability.” A prime example of fatty, ostensibly meaningless Washington wonk-speak. But it goes further—the bill, if passed, would prohibit civil suits arising out of a failure to provide adequate access to public accommodations for the disabled unless the plaintiff provides offending property owners with a written notice specifying the deficiency. Owners would then have 60 days to respond with a written plan for improvement, and an additional 120 days to correct the deficiency, or at least demonstrate sufficient progress towards a correction.

As of now, if a disabled individual cannot access a business open to the public, they can immediately file a complaint with the Justice Department, which will investigate and determine whether a legitimate ADA violation has occurred. If a violation is identified, most plaintiffs opt to mediate with the offending business under the Justice Department’s moderation. If a business fails to cooperate, the Justice Department may sue on the disabled individual’s behalf. These individuals may also file lawsuits against businesses in civil court without federal involvement, sidestepping the entire mediation process.

“The cornerstone of current enforcement options is that the violation can often be resolved swiftly,” Robyn Powell, an attorney and disability law and policy consultant who disabled herself, writes for Rewire. With the passage of HR 620, individuals with disabilities will be forced to wait 180 days, and likely longer, to seek vindication of their federally-protected civil rights.

Sponsored by Texas representative Ted Poe, a Republican, along with two Republican and three Democratic colleagues all from Texas and California, HR 620 aims to “curb frivolous lawsuits filed by cash-hungry attorneys and plaintiffs that abuse the ADA,” according to a a Jan. 2017 press release.

Poe contends that most small business owners in the US “believe that they are in compliance with the ADA and have even passed local and state inspections.” However, “certain attorneys and their pool of serial plaintiffs troll for minor, easily correctable ADA infractions so they can file a lawsuit and make some cash.” He points to an alleged “whole industry” comprised of “people who prey on small business owners and file unnecessary, abusive lawsuits.”

And he’s not entirely wrong. Indeed, according to a report compiled by attorneys with the employment/labor law firm Seyfarth Shaw, ADA Title III lawsuits—the aforementioned suits filed in civil court sans Justice Department intervention—surged 37% in 2016. But only a fractional minority of these suits were filed by so-called serial plaintiffs, with only 12 having filed more than 100 ADA Title III suits respectively. (A group including two broader disabled-rights advocacy organizations, among some notable ADA abusers.)

While frivolous ADA Title III suits, also known as “drive-by lawsuits,” are certainly a problem worth addressing, disabled-rights advocates view HR 620 as a bill that addresses symptoms over root cause.

“There is no active monitoring of ADA compliance,” writes Kim Sauder, a disability studies scholar, in a Dec. 2016 entry published to her blog, Crippled Scholar. “Dealing with infractions of laws governing accessibility [in the US] is often primarily done through complaints. So while the law may say what needs to be done, unless someone actually complains there is little incentive to actively comply. There is no independent body doing regular inspections and meting out fines for non-compliance.”

In effect, measures like HR 620, which stifle the complaints process, actively obstruct enforcement of the ADA as it is currently formulated. “Enforcement depends on people with disabilities who know their rights to challenge violations,” Robyn Powell explains. “Filing lawsuits is timely and expensive. Finding an attorney that is knowledgeable about the ADA is very challenging. I say this because I believe it is fairly safe to assume that there are far more ADA violations occurring than we will ever hear of. As a disabled woman, I encounter violations daily.”

Still, a few notable cases of ADA abuse (such as Florida’s prolific drive-by plaintiff, Howard Cohan), supplemented by high-profile exposés that only substantially consider one side of the issue, have instilled a widespread misconception: That ADA regulations are overwhelmingly weaponized against small-business owners to the enrichment of a few slick-haired lawyers and system-gaming plaintiffs. It’s a bilateral shoving-match that excludes the individuals the ADA was specifically crafted to protect.

Parking regulations are among the most frequently cited in arguments against the current system of ADA enforcement. “What opponents don’t understand is that the width of parking spaces matter for people with disabilities who drive, such as myself,” Powell says. “I drive a wheelchair-accesible van. If someone parks too close, I am literally stuck because no one besides me can drive my van. This has happened to me more times than I [can] count, leaving me stranded outside for hours, until the person returns to their car.”

The solution disabled-rights advocates call for revamps ADA enforcement methods entirely, sidelining citizen complaints as the chief vehicle for compliance, and inspiring more evenly-spread regulation. “It would be better if government took an active role in monitoring and enforcing accessibility legislation,” says Kim Sauder. “It would likely create a more accessible environment. It would also remove the need for mass lawsuits. It would also remove the proprietor-as-victim narrative because the law would be enforced more uniformly. People would not be able to opine that they had been hit with an infraction when the guy down the street did not.”

Of course, this is a long shot in the current political climate. The Trump administration, and our Republican-dominated legislature, have demonstrated an outsized affinity for the interests of small-business owners—at least on paper—and an active hostility towards federal regulation. Neither is likely to recognize stricter federal regulation as a solution to any problem, not least enforcement of the ADA.

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