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Wednesday, February 14, 2018

ASAN Opposes Bill to Weaken ADA

In The Politics of Autism, I discuss the civil rights of people with autism and other disabilities.

ASAN Letter to House Leaders on H.R. 620
The Autistic Self Advocacy Network (ASAN), the nation’s leading 501(c)(3) disability rights advocacy organization by and for autistic people ourselves, strongly opposes H.R. 620, the “ADA Education and Reform Act of 2017.” H.R. 620 would curtail the civil rights of Americans with disabilities by making it prohibitively difficult for us to enforce our right to access public places under Title III of the Americans with Disabilities Act (ADA). By unnecessarily forcing people with disabilities to navigate complex red tape and wait for months before challenging access barriers, HR 620 would greatly reduce our access to the community and limit our ability to live full and independent lives. By forcing people with disabilities to hire lawyers to provide the required notices, H.R. 620 may also increase the total amount of ADA litigation.
H.R. 620 would require people with disabilities to file a complicated written notice to the owner of a public accommodation before they can file a legal complaint challenging an architectural barrier. The notice must describe the barrier, explain the exact way that the barrier has already prevented the person from gaining access, note whether the barrier was permanent or temporary, whether the person has already requested the removal of the barrier, and must even cite the specific provisions of the ADA that were violated. No other civil rights law requires such a notice. Requiring people who want to sue under a civil rights law to navigate additional procedural hurdles sets a dangerous precedent, which could lead to similar bills that curtail the enforcement of other civil rights laws, such as the Civil Rights Act of 1964. The notice requirement is also unduly burdensome and will chill legitimate claims, particularly for people with cognitive and developmental disabilities, who may have difficulty providing these details. Moreover, because it requires a citation to specific portions of the ADA, the law effectively forces people with disabilities to preemptively hire a lawyer in order to notify businesses of an ADA violation.
Following the receipt of a notice, the business owner would then have 60 full days to acknowledge receipt of the letter, and another 120 days to make “substantial progress” in eliminating the barrier. People with disabilities might be forced to wait up to four months to enforce our own civil rights, even if we need access to a particular business right away. This will make the ADA effectively unavailable to people with disabilities who wish to attend concerts, sports games, or other similar events on a specific date, to travelers with disabilities, and to people with disabilities who need to access a specific building as part of their job.
Additionally, H.R. 620’s letter requirements place the burden of educating businesses on ADA compliance on the person with a disability. The Americans with Disabilities Act has been law since July 26, 1990. Businesses have had 28 years to come into compliance with the ADA, and 28 years of ready access to the resources necessary to understand how to come into compliance. The Department of Justice and Regional ADA Centers already provide technical assistance, training, and resources on how to comply to businesses across the nation. Many disability rights organizations themselves offer webinars, training, and resources on how to create accessible businesses and public spaces. There is no justifiable reason, therefore, that a business should be out of compliance with the ADA, nor should people with disabilities have to wait even one day longer to take action against a business that is violating the law. We cannot, and should not, be expected to teach a business how to respect our rights.
H.R. 620 is being promoted by a small number of businesses who feel that they have been subjected to frivolous lawsuits. While frivolous lawsuits and unethical lawyers do exist in all legal fields, including disability rights, imposing onerous procedural requirements and a lengthy waiting period is unreasonable and ineffective as a deterrent. The ADA itself was constructed with an emphasis on reducing frivolous litigation. Only injunctive relief and attorney’s fees, rather than damages, are available for violations of Title III of the ADA. State and local laws, professional ethics rules, and the federal rules of civil procedure (such as Rule 11), additionally deter lawyers from submitting fraudulent or frivolous lawsuits.
Instead, since average citizens are less likely to be familiar with the procedural requirements, H.R. 620 is more likely to chill legitimate claims filed by people with disabilities ourselves. People with disabilities with legitimate claims often attempt to notify businesses and give them an opportunity to cure the violation prior to seeking out a lawyer. However, since few lay persons will be aware of the requirements of H.R. 620, those who made a good faith but unsuccessful effort to talk to the business owner will find that they must now provide another legal notice and wait another four months before they can file a complaint in court. This system encourages a person with a disability to hire a lawyer as soon as they experience an access denial, which may in fact increase the likelihood of litigation.
People with disabilities have been discriminated against and treated as second-class citizens for generations. H.R. 620 would undermine enforcement of critical legal protections. For this reason we urge Congress to oppose the passage of this legislation. For more information on the Autistic Self Advocacy Network and our opposition to H.R. 620, please contact Samantha Crane, our Director of Legal and Public Policy, at
Samantha CraneDirector of Legal and Public PolicyAutistic Self Advocacy Network