Why Congress Is Close to Gutting a Key Provision of the ADA - Pacific Standard

Why Congress Is Close to Gutting a Key Provision of the ADA

Retail lobbyists are pushing through a law that will limit equal access for disabled Americans in commercial spaces.
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People participate in the first annual Disability Pride Parade on the 25th anniversary of the Americans With Disabilities Act on July 12th, 2015, in New York City.

People participate in the first annual Disability Pride Parade on the 25th anniversary of the Americans With Disabilities Act on July 12th, 2015, in New York City.

On Thursday, February 15th, the Republican caucus and at least some Democrats in the House of Representatives are likely to vote to make the Americans With Disabilities Act (ADA) functionally optional when it comes to businesses. Propelled by years of lobbying by a group that represents shopping malls, the House will approve a new law that removes businesses' incentive to comply with the ADA. Disability activists unanimously argue that the bill will reverse nearly 30 years of progress, but the lobbying efforts of the International Council of Shopping Centers keep pushing it forward.

H.R. 620, the "ADA Education and Reform Act of 2017," restructures the enforcement mechanism for the ADA. The means of enforcement have always been unusual. Most regulations that affect commerce are enforced by local, state, and federal agencies. While there is a small division in the Department of Justice (DOJ) doing some oversight, the ADA generally depends on private citizens bringing complaints through damages-free lawsuits (though with legal fees attached) in order to command technical compliance in commercial spaces. Think about how this differs from most other regulatory situations. You aren't required to check whether the local restaurant complies with health codes, labor standards, or other safety features; the government does that for you. When it comes to disability, though, most enforcement starts with a personal lawsuit.

This unusual feature of the ADA enforcement mechanism has given rise to a small group of shady lawyers who allegedly send disabled clients into businesses to detect accessibility failures, report back, and collect a fee from the lawyer. This gaming of the system is a legitimate problem—one that the lawyer and writer Robyn Powell tells me, over email, should be handled by bar associations. Instead, the ICSC and other commercial lobbying groups are using the excuse of "drive-by lawsuits" as a pathway to undermine the ADA as a whole.

H.R. 620 works on two fronts. First, it demands that the federal government offer businesses more education about the ADA, while not providing additional funding to implement that education. In fact, the DOJ already provides such education. As we've covered at Pacific Standard, the Department of Justice has been rolling back guidance documents that clarify how the ADA works, so the best guess about H.R. 620's education statute is that it's a way to cut enforcement activity by making the DOJ spend more money on education.

The second front—notification—is more pernicious. Right now, businesses that are found to be non-compliant can be held immediately accountable. That seems fair, given that the ADA has been law for 28 years. Under the new bill, a person who encounters an accessibility obstacle would need to give a written, technical notification to the business (which often will require a lawyer to do correctly), wait 60 days for that notification to be acknowledged, and then wait 120 more days for "substantial progress" to be made in resolving the accessibility issue. If, after 180 days, there hasn't been substantial progress (it's not clear quite how that standard would be regulated), the disabled person who first encountered the accessibility obstacle can then sue. They still won't be able to collect damages.

The disability community has been working to stop earlier iterations of this bill since 2000, and writing op-eds and lobbying Congress against this specific bill since 2017. Senator Tammy Duckworth wrote against the bill for the Washington Post in October, when the bill was in the House Judiciary Committee. Tom Ridge, the former Republican governor of Pennsylvania and Department of Homeland Security chief under George W. Bush, wrote against the bill for The Hill this week. But it's now through committee and is scheduled for a floor vote on Thursday.

Disabled people carry signs as they protest cuts to Medicare on September 21st, 2011, in San Francisco, California.

Disabled people carry signs as they protest cuts to Medicare on September 21st, 2011, in San Francisco, California.

It doesn't have to be this way. The unscrupulous lawyers who are taking advantage of the ADA for sheer profit are a problem, but their conduct is fixable without attacking the ADA. Powell, who has been following this bill's progress, tells me over email that there are existing ethics rules that could be brought to bear. "Attorneys must act in 'good faith,'" she writes. "Part of that is the duty of attorneys to engage in reasonable inquiry prior to a lawsuit. I'd argue this is not followed in the so-called 'drive-by lawsuits.'" When lawyers constantly file frivolous lawsuits for serial litigants, that’s a tell that an attorney is acting in bad faith, Powell says. In such contexts, both courts and bar associations are empowered to act.

The ICSC, alas, hasn't gone after the lawyers. Still, in public statements, YouTube videos, and letters sent to their members, the ICSC is claiming that drive-by lawsuits are a real threat to commerce, but that their bill nonetheless protects the "integrity of the ADA." That's just wrong. Retail lobbyists, of course, opposed the passage of the ADA in the first place and, helped by sensationalized news stories about lawyers run amok, are using those stories as an excuse to transform fundamental accessibility in commercial spaces. The ICSC won't even meet with disability rights advocates in D.C.

Dara Baldwin, senior public policy analyst with the National Disability Rights Network, tells me over the phone that ICSC has been avoiding her group for years now. She says that "ICSC is behind this bill," and that she's been trying, with limited luck, to meet with the group since 2009 (when she was with a different disability rights organization). Last May, thanks to interventions from a veterans' group, Baldwin's organization was able to sit down with ICSC for one hour. Nothing, she says, was accomplished.

ICSC has not returned any of my calls or emails asking for comment. I was forwarded an email they sent to members touting H.R. 620, but it has not tweeted about H.R. 620 or otherwise released public statements in support of it.

ICSC's persistent refusal to talk to the disability community flies in the face of the whole history of the ADA, Baldwin tells me. When the commercial regulations were being designed for the ADA, business groups met with the disability rights community and congressional staff in multiple, intense sessions to hash out the details. If the business community really wanted to address the "drive-by" issue, they should be working with disability rights experts, not against them.

Meanwhile, ICSC's ability to continue its work unnoticed seems to be diminishing, as the disability community shifts its focus from defending their rights to targeting the groups that want to take those rights away away. On social media, for example, more and more tweets are being aimed at ICSC, as are the scripts and sample letters I've seen shared on various listservs. Lawrence Carter-Long, from the Disability Rights Education and Defense Fund, points out that people whose commercial sites are not accessible are, in fact, breaking the law. Sure, opportunistic lawyers can be a problem, but the real issue is that "big business is waging a propaganda war to bamboozle Congress into believing their own lack of accessibility isn't the problem," Carter-Long says. "They can spin it any way they want, but rewarding people for breaking the law isn't the answer. H.R. 620 is classic misdirection."

What's more, in this age of online retail, ICSC may be setting up its own members to fail. Rebecca Cokley, from the Center for American Progress, cites data showing that people in the disability community "spend more money per [shopping] trip vs. our non-disabled counterparts, and make five more [shopping] trips per year. Consumers with disabilities spend 17 percent more in mass merchandisers than the average consumer. We need to stop bankrolling their discrimination campaign." Matthew Cortland, a lawyer and disability rights activist, backs up Cokley's claim by pointing to a study from Nielsen. Via direct message, Cortland tells me, "Instead of seeking to undermine the civil rights of disabled Americans, ICSC should be championing our inclusion in all aspects of society, including shopping."

Unscrupulous lawyers are a problem, so let's work on sanctioning them. As Dara Baldwin says, "You got bad apples, go after the bad apples!" What shouldn't happen is a legislative assault, fueled by donations from retail groups, on the fundamental right to equal access for people with disabilities. One hundred eighty days is too long to wait for a fix, especially when businesses have had 28 years to make their spaces accessible. H.R. 620 must be stopped. 

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