Senator Dianne Feinstein
c/o Phillip Brest
The Disability Rights Education & Defense Fund (DREDF) is a leading national law and policy center on the rights of people with disabilities since 1979. We are based in the East Bay area of California.
H.R. 620 would weaken the ADA, a critical source of rights for people with disabilities to public accommodations. It would turn people with disabilities into second-class citizens, and undermine very principles of an inclusive society that America is all about. H.R. 620 erodes the balancing of interests in the ADA by removing incentives for businesses to comply with the law, and by placing excessive burdens on individuals with disabilities. It is exceptionally harmful for many reasons, some of which are detailed below.
Today, businesses have an obligation to make themselves accessible, and there’s a consequence if they don’t. Under H.R. 620, there would be no consequence, and thus, no incentive to comply with the ADA. People could still be excluded without a good way to enforce the ADA, while businesses take a wait-and-see attitude. After 27 years since the ADA was enacted, businesses should be expected to comply with their legal obligations.
Discrimination is Real
The bill’s backers are forgetting the everyday experiences of millions of people with disabilities who cannot shop, transact personal business, or enjoy recreation like most people can take for granted, because so many public accommodations across the country have ignored the reasonable requirements of the ADA. The ADA is the difference between participation and exclusion on a daily basis. Why should a wheelchair user be unable to join her family at a restaurant, just because the owner has resisted installing a ramp for 25 years?
H.R. 620 Places the Heaviest Burden on Individuals with Disabilities—The Group Who The Law Is Designed to Protect
H.R. 620 requires a person with a disability who encounters an access barrier to send a written notice with the exact provisions of the ADA that are being violated. The ADA should not place the heaviest burden for ending discrimination on the very people the law is supposed to protect! H.R. 620 also gives the business owner 60 days to even acknowledge that there is a problem—and then another 120 days to begin to fix it. No other civil rights group is forced to wait 180 days to enforce their civil rights. Even then, the business would face no consequence for violating the law for months, years, or decades, if it takes advantage of the months-long period to remedy the violation before a lawsuit is permitted.
Moreover, once notice is received, the legislation would grant the business the six months to make “substantial progress” in removing the barrier described in the notice. This means a business could spend years without actually removing barriers to come into compliance with longstanding access standards, and face no penalty, so long as “substantial progress” can be claimed. Even our largest and most ubiquitous corporations—from Wal-Mart to Starbucks—would be entitled to these exemptions.
ADA Already Carefully Crafted to Take Business Needs Into Account
The ADA is already very carefully crafted to take the needs of business owners into account. Compliance is simply not burdensome. All that’s required of existing facilities is to remove barriers where it’s “readily achievable,” defined as “easily accomplishable and able to be carried out without much difficulty or expense.” The requirement is carefully tailored to the business’s resources. But H.R. 620 changes the careful compromise originally designed by a bipartisan Congress in 1990, and wrecks havoc with the entire ADA scheme. Any further weakening would do major damage to the ADA’s disability rights protections.
Establishing and running a business necessitates compliance with many laws and rules—this is the cost of doing business. It is unthinkable that we would delay or eliminate consequences for small businesses that failed to pay taxes, or meet health and safety codes. Violating the rights of people with disabilities should be treated no differently.
Extensive Federal Efforts to Assist Business Compliance
Many businesses are unaware of the already extensive federal efforts to educate businehttp://www.adata.orgss owners about their ADA obligations, including the in-depth DOJ ADA website (http://ada.gov), the DOJ ADA hotline, extensive DOJ technical assistance materials, and the ten federally-funded regional ADA Centers that provide in-depth resources and training in every state (). Yet a great many of the millions of public accommodations in the U.S. have made no effort to comply with the ADA.
H.R. 620 Would Not Fix Business Concerns About Money Damages
Supporters of this bill have raised concerns about money damage awards. But that has nothing to do with the ADA, because the ADA does not allow money damages.[i] Such damages are only available under a handful of state laws. For Congress to amend the ADA will do nothing to prevent damage awards under state laws.
Importance of the ADA Standards
The ADA accessibility standards are extremely important. They are not minor details or picky rules, but rather, are essential to ensure true accessibility. A doorway that is too narrow can be the difference between accessing a business or not. A too-short bathroom grab bar can be the difference between using a restroom or being forced to go without a restroom.
Courts Have the Power Today to Address Very Small Number of Unscrupulous Attorneys
Supporters of H.R. 620 cite concerns about frivolous lawsuits or serial litigants. But the vast majority of ADA attorneys and plaintiffs are seeking solutions to fix real denials of access. For the rare few who may file fraudulent claims or engage in unscrupulous practices, courts and state bar associations already have extensive power to deal with any frivolous litigants or their attorneys. Please see attached memo about state actions doing exactly this. We should use those existing legal mechanisms when needed, rather than denying the civil rights established by the ADA.
Please do not place additional barriers in the path of people with disabilities! We urge you to reject H.R. 620 and similar bills.