Is ADA Reform on the Horizon?

Is ADA Reform on the Horizon?

The U.S. House of Representatives recently passed the Americans with Disabilities Act Education and Reform Act of 2017, which is intended to curb frivolous disability lawsuits that are designed to rake in damages rather than increase accessibility.

Title III of the ADA

Title III specifically prohibits discrimination on the basis of disability in the full and equal enjoyment of places of public accommodation, which are defined as privately operated entities whose operations affect commerce, such as restaurants, hotels, movie theaters, retail store, private schools and day care facilities, recreational facilities, and doctors’ offices.

Among other requirements under Title III, public accommodations must:

• Eliminate unnecessary eligibility standards or rules that deny individuals with disabilities an equal opportunity to enjoy the goods and services of a place of public accommodation;
• Make reasonable modifications in policies, practices, and procedures that deny equal access to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations; and
• Furnish auxiliary aids when necessary to ensure effective communication, unless an undue burden or fundamental alteration would result.

ADA Reform Act of 2017

The ADA Reform Act amends the provisions of the ADA governing “barriers to access to existing public accommodations.” As described in the ADA Guide for Small Businesses, architectural barriers are physical features that limit or prevent people with disabilities from obtaining the goods or services that are offered. They can include parking spaces that are too narrow to accommodate people who use wheelchairs; a step or steps at the entrance or to part of the selling space of a store; round doorknobs or door hardware that is difficult to grasp; aisles that are too narrow for a person using a wheelchair, electric scooter, or a walker; a high counter or narrow checkout aisles at a cash register, and fixed tables in eating areas that are too low to accommodate a person using a wheelchair or that have fixed seats that prevent a person using a wheelchair from pulling under the table.

The bill specifically prohibits civil actions based on the failure to remove an architectural barrier to access into an existing public accommodation unless: (1) the aggrieved person has provided to the owners or operators a written notice specific enough to identify the barrier, and (2) the owners or operators fail to provide the person with a written description outlining improvements that will be made to improve the barrier or they fail to remove the barrier or make substantial progress after providing such a description.

Under the bill, the aggrieved person’s notice must specify: (1) the address of the property, (2) the specific ADA sections alleged to have been violated, (3) whether a request for assistance in removing an architectural barrier was made, and (4) whether the barrier was permanent or temporary.

According to sponsor Representative Ted Poe (R-TX), there is currently “a whole industry made up of people who prey on small business owners and file unnecessary and abusive lawsuits. This bill will change that by requiring that the business owners have time to fix what is allegedly broken.” His argument is backed up by evidence. A 2016 revealed that some attorneys are simply driving by businesses, or even using Google Earth, to find technical violations of the ADA. In Florida, one attorney filed more than 60 lawsuits in 50 days against hotels that lacked pool lifts, a requirement that went into effect in 2012. Overall, lawsuits under Title III of the ADA rose by 18 percent from 2016 to 2017.

Not surprisingly, the bill also has many critics. The chief argument against the bill is that without the threat of lawsuit, businesses will not rectify ADA violations. “We know of no other law that outlaws discrimination but permits entities to discriminate with impunity until victims experience that discrimination and educate the entities perpetrating it about their obligations not to discriminate,” the Consortium for Citizens with Disabilities wrote in a letter to House leadership. “Such a regime is absurd, and would make people with disabilities second-class citizens.”

We will continue to track the status of the ADA reform bill and post updates as they become available. In the meantime, businesses that are considered public accommodations should be aware that they may be targeted by frivolous ADA suits. The best way to prevent any ADA suit is to fully understand your obligations under Title III and work with an experienced attorney to ensure compliance.

If you have questions regarding ADA reform, please contact us

Do you have any questions? Would you like to discuss the matter further? If so, please contact me, Sean Dias, or the Scarinci Hollenbeck attorney with whom you work at 201-806-3364.