This past Thursday, the House of Representatives passed (by a vote of 225 to 192) the “ADA Education and Reform Act of 2017.” The bill is designed predominantly to alter the procedures that must be followed concerning alleged violations of the Americans with Disabilities Act (ADA) by public accommodations such as restaurants, hotels, movie theaters, and shopping malls.
Since 1990, the ADA has barred public accommodations from depriving any disabled individual of the “full and equal enjoyment” of their facilities on the basis of the individual’s disability. Thus, business owners must take “readily achievable” steps to remove existing architectural and communication barriers and must make appropriate disability-friendly alterations to newly constructed facilities (e.g. installing wheelchair ramps and providing wider priority parking spaces with appropriate signage and creating wheelchair-accessible paths to drinking fountains and bathrooms).
The ADA further permits anyone who claims to have been injured by an alleged violation of these requirements to file a lawsuit against the business owner. To encourage compliance while curbing potential abuse of the law by overly zealous plaintiffs and their attorneys, Congress allowed prevailing plaintiffs to obtain only injunctive relief and a “reasonable attorney’s fee.” Significantly, unlike employment discrimination claims based on disability, money damages are not available. (Likewise, although several parallel state laws do authorize money damages, Maryland authorizes only nonmonetary (injunctive) relief and civil penalties of between $500-$2,500 against business owners who fail to cure architectural barriers that adversely affect disabled individuals.)
The House bill would, however, require future potential plaintiffs to take two additional steps before filing suit. First, unless the business owner has already made clear that he or she does not intend to comply with the ADA, the individual alleging a violation would be required to give the business owner “written notice” identifying the purported architectural barrier. The bill does not specify what form such notice must take, although it must be “specific enough to allow [the business] owner . . . to identify the barrier.” In addition, the notice must explain “the circumstances under which an individual was actually denied access to a public accommodation, including the address of property, whether a request for assistance in removing an architectural barrier to access was made, and whether the barrier to access was a permanent or temporary barrier.”
Second, the individual must give the business owner 60 days after receiving the notice to respond by: (1) providing the individual with “a written description outlining improvements that will be made to remove the barrier”; and (2)(a) actually removing the barrier; or (b) if removal within 60 days is not feasible due to external circumstances outside the owner’s control, making “substantial progress” in removing the barrier. (The bill does not define what constitutes “substantial progress,” however.) Only then would the individual be permitted to sue the business for compliance.
The bill also instructs the Department of Justice to create educational and training programs for state and local governments and orders the development of a model program to promote informal dispute resolution.
The bill’s supporters, which include the International Council of Shopping Centers (ICSC) and the National Federation of Independent Business (NFIB), contend that these procedures are necessary to curb the number of so-called “drive-by lawsuits,” which have increased substantially in recent years, by incentivizing informal dispute resolution and prioritizing compliance over compensating plaintiffs’ attorneys. An array of disability rights groups, on the other hand, have opposed the bill by arguing that it ironically erects procedural barriers toward enforcement a law that is intended to have precisely the opposite intended effect, i.e., eliminating barriers.
The bill faces uncertain prospects in the Senate, although Tammy Duckworth, who uses a wheelchair as a double amputee, and others have come out publicly against it. If it passes, the bill would go to President Trump’s desk for his signature into law.