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Bill applies to public accommodations provisions of the ADA, not employment
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Small businesses should have a chance to correct accessibility violations of the Americans with Disabilities Act (ADA) before they are sued, say Republicans in the House of Representatives. To give businesses that opportunity, they passed the ADA Education and Reform Act (H.R. 620) on Feb. 15 by a vote of 225-192.
If enacted, the legislation would amend Title III of the ADA, which prohibits public accommodations—hotels, restaurants, theaters, private schools, private day care centers and health care providers—from discriminating against disabled customers or other individuals. Individuals would not be able to sue businesses because they weren't able to access or use parts of their buildings or premises because of their disabilities until the business owners fulfilled certain notice requirements.
The bill does not apply to Title I of the law, which prohibits disability discrimination by employers, though HR professionals sometimes are the only ones keeping businesses apprised of their accessibility obligations under Title III.
[SHRM members-only toolkit: Accommodating Employees' Disabilities]
Already Democrats in the Senate have voiced their opposition to the bill.
"This offensive legislation would undermine civil rights in our nation and reward businesses that fail to comply with the ADA, which has been the law of the land for nearly 30 years," said Sen. Tammy Duckworth, D-Ill., who is a double-leg amputee and veteran of the Iraq War. "Passing it would send a disgraceful message to Americans with disabilities: their civil rights are not worthy of strong enforcement and they can, once again, be treated like second-class citizens."
The bill would require individuals who think the business is inaccessible to people with disabilities to write the owner before filing a lawsuit. The notice must specify:
The owner then would have 60 days to respond with a description of how the barrier would be removed. The owner next would have 120 more days to make "substantial progress" on removing the barrier.
Nothing in the bill would prevent the business owner from deliberately using the proposed notice-and-cure provisions as a delay tactic to discourage lawsuits from being filed, dissenting Judiciary Committee members noted in a report on the bill.
Common Accessibility Problems
The report also faulted Title III for having too many technical requirements for businesses to follow, saying this was "a major cause of noncompliance." It observed that a single bathroom must meet at least 95 different standards.
William Goren, J.D., principal with ADA Consulting in Decatur, Ga., said that some common accessibility violations include:
Inaccessible websites are becoming another big target of litigation, noted Scott Topolski, an attorney at Cole Schotz in Boca Raton, Fla. He said it was an open question whether the legislation would apply to them.
'Drive-by' and Google Lawsuits Targeted
But he added that the bill's proposed changes "are long overdue."
A "60 Minutes" story on Dec. 4, 2016, featured several small business owners who were subject to "drive-by" lawsuits, where the storeowners alleged the people who sued weren't customers but individuals who stopped by small businesses with the intent of finding something to sue over, saw violations and sued, the report observed.
In "Google lawsuits," individuals see certain accessibility problems via satellite images on Google maps or on company websites, such as the lack of a pool lift, and sue. Perry Pustam, a hotel owner in Hollywood, Fla., alleged he was targeted by an attorney who had filed 60 such Google lawsuits in 50 days, the report noted.
"Businesses are almost uniformly willing to fix their properties without the expense and hassle of litigating in federal court," the report added. Hauling them into court "regardless of their willingness to comply voluntarily with the ADA solely to vest plaintiffs' attorneys with an entitlement to fees provides very little societal benefit."
However, former Republican Pennsylvania Gov. Tom Ridge, warned in an op-ed in The Hill on Feb. 13 that the ADA's "guarantees are now at risk" because of the bill.
"H.R. 620 would eliminate any incentive for businesses to comply with the ADA proactively," he wrote. "A business that did not comply would face no consequence until after it received a legal notice. … And then the business would have six months to do something about it and would merely be required to make 'substantial progress' in removing barriers, instead of actually providing access."
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