Nuisance lawsuits are just that—a nuisance. So on the surface, it would seem like a good thing that the House of Representatives just passed a bill, H.R. 620, that promises to remedy the issue in regards to the Americans with Disabilities Act of 1990. Some individuals are building a reprehensible cottage industry, filing dozens, hundreds, even thousands of suits against businesses for alleged noncompliance of the law.
However, if the ADA Education and Reform Act passes muster with the Senate and White House, it will do nothing to prevent such suits. Under a false flag of reform, it instead will unnecessarily impede the disabled with new legal barriers.
This is no small constituency: According to the Social Security Administration, 56 million Americans (or 1-in-5) live with disabilities, due to age, illness, or genetics. And 38 million of them (1-in-10 Americans) live with “severe disabilities” such as epilepsy, Down syndrome, schizophrenia, deafness, and blindness.
For nearly 30 years, the ADA has protected people with disabilities from discrimination. Of most immediate concern to architects is Title III of the act, which covers physical access to privately owned places of public accommodation—restaurants, stadiums, retail stores, and the like. The goal, quite simply, is to ensure that everyone has equal ability to enter and use such places. Hence the wheelchair ramp, restroom grab bar, and other standards of universal design.
Currently, if a person with a disability encounters an accessibility barrier, and the property owner refuses to accommodate them, they can file a complaint with the Department of Justice’s Disability Rights Section (a small team of some nine lawyers that may mediate or file a suit on a complainant’s behalf) or they can file a lawsuit themselves. H.R. 620 effectively gives businesses a 120-day grace period, during which complainants cannot file a suit. At the end of that time, businesses need only to have made “substantial progress in removing the barrier,” which is a far cry from actually providing access.
As the American Civil Liberties Union noted in a statement opposing H.R. 620, by making it harder to sue businesses for noncompliance, the legislation all but encourages owners to adopt a “wait and see” attitude. As in, “Let’s wait and see whether we get caught breaking the law.”
Supporters of the new legislation (as listed on the website of the bill’s co-sponsor, Rep. Ted Poe of Texas) include the American Hotel & Lodging Association; American Resort Development Association; Building Owners and Managers Association International; Institute of Real Estate Management; International Council of Shopping Centers; International Franchise Association; National Apartment Association; National Association of Realtors; National Association of Theatre Owners; National Council of Chain Restaurants; National Federation of Independent Business; National Multifamily Housing Council; National Restaurant Association; National Association of Truck Stop Owners; Retail Industry Leaders Association; and the U.S. Chamber of Commerce.
That’s quite a list. Unfortunately, signing the ADA Education and Reform Act into law will not protect the industries these associations represent from frivolous suits, because the ADA already prohibits complainants from suing for damages. Under the ADA, winning a case compels the noncompliant business to provide access, pay your legal fees, and nothing more. (Access is, after all, the whole point of such cases.) Accessibility nuisance cases, with their costly damages, are brought to court under state and local laws, not at the federal level. And that’s where reform should occur. H.R. 620 will just make it easier for recalcitrant business owners to avoid the nuisance (read, expense) of providing equal access.
