There’s a bill currently pending in Congress, H.R. 620, the ADA Education and Reform Act, which is becoming of increasing concern to the disability community. Bills like this have been floating around for a while, but there’s a chance this one could pass, and if it does, it would substantially gut the Americans With Disabilities Act — the law that requires businesses of all kinds to be accessible for people with disabilities. This bill would be extremely damaging to all aspects of accessibility, including and especially travel with a disability.
As currently proposed, H.R. 620 would prohibit people with disabilities from bringing lawsuits against businesses which do not comply with the ADA without first going through a notification process. This process would involve waiting 60 days for the business owner to acknowledge the problem, and another 120 days to begin to fix it. The business would have six months to make so-called substantial progress towards addressing the complaint — a subjective standard that could let them go years without actually fixing the violations.
There are many problems with this legislation, but let’s start with a number — 27. The Americans With Disabilities Act was passed in 1990 — that’s 27 years ago. So the businesses the bill is trying to shield from lawsuits have had 27 years to comply with the law. And now they’re saying they need more time? That’s ridiculous. No other piece of civil rights legislation requires such a waiting period. If a restaurant refuses to serve a customer based on race, that person doesn’t have to send them a letter asking them not to do it again. No, they can sue, and they should. But if a single step — a significant yet easily addressed barrier — keeps a wheelchair user out, we would have to go through an elaborate, easily delayed and manipulated process to make them put in a ramp they should have installed years ago. This would make people with disabilities into second-class citizens. It says our rights aren’t real rights, and makes accessibility into just a nice thing businesses can do if they get around to it.
The supposed justification for this legislation is to cut back on so-called frivolous ADA lawsuits. These lawsuits are filed, usually en masse, by predatory attorneys who find plaintiffs with disabilities to join them in their schemes. Most of the violations cited in their lawsuits tend to be minor, things like a paper towel holder in the bathroom mounted an inch too high. These lawsuits are disgusting and harmful — but H.R. 620 wouldn’t stop them. The ADA contains little incentive for lawsuits as it is now, because it does not provide for financial damages. However, some states’ disability laws do. So lawyers would still be free to file suit over minor issues in those state courts while people struggling with significant access violations in other states are left with little recourse.
Unfortunately, these frivolous lawsuits have garnered a lot of media attention. One of the more notable stories was an in-depth hit piece by Anderson Cooper, which I have previously written about. It can be summed up thus: Anderson Cooper is a hypocrite. He complains about ADA lawsuits while the bar his partner owns is not wheelchair accessible due to a step at the entrance. The only problem in this scenario is that these attorneys are suing over tiny problems instead of going after major ADA violations like those at The Eastern Bloc nightclub.
With the amount of attention given to these lawsuits, you would think people with disabilities who have experienced even the tiniest ADA violation would have lawyers knocking at our door ready to help us file suit. But that is not the case — because as I mentioned, the ADA doesn’t provide for damages. As a traveler, I’ve experienced numerous instances of discrimination, particularly surrounding hotels not properly reserving wheelchair accessible rooms. On my last trip to Denver, I had to change my hotel reservation because when I called the hotel to confirm I had the roll-in shower room, they said it wasn’t available, even though I had booked it. After transferring my reservation to another hotel, I confirmed the roll-in shower room with them. But when I arrived, I was put in a bathtub room, and they told me the roll-in shower room wasn’t available. I had to change hotels yet again — late at night, while exhausted from the day’s travel.
The same thing has happened to me three other times in the past seven years. This is a major hotel chain, with computer programmers who should be able to design their database to book and hold a specific room. It’s more than grounds for a lawsuit, yet despite how many times I’ve posted about it, I’ve never received a single inquiry or offer of assistance from an attorney. The reality is that people with disabilities usually struggle to resolve these kinds of access violations with little support. We don’t have lawyers lined up waiting to help us. And honestly, most of us don’t want to file lawsuits. We do contact businesses first; we use their customer service emails and other means to complain just like other dissatisfied customers. And if the business tries to make things right, if they apologize and refund our money when it’s justified, most of the time we don’t sue them. Even if maybe we should.
Although I have advocated for myself to resolve access problems when I travel, I sometimes feel guilty that I haven’t done more. I just want to enjoy my trips like everyone else, but my experiences are often marred by these blatant ADA violations. Changing the law to make it easier for businesses to get away with noncompliance will only make things worse. When I complain, I don’t generally threaten to file a lawsuit. But they know they could be sued, and that gives them incentive to make things right. Without that incentive, customers with disabilities could be seen as too much of a hassle to bother accommodating, especially by businesses who aren’t aware of the considerable economic power we hold. And the harder it becomes for people with disabilities to challenge inaccessible public establishments — particularly those we encounter while traveling — the less we will do so, because the process becomes too daunting on top of the struggles we face every day.
The Americans With Disabilities Act is not perfect. And there is a small but troublesome group of lawyers filing frivolous lawsuits. But we do not need a heavy-handed federal law to fix what is essentially a local problem. Several states, including California, have already passed new laws giving small businesses the opportunity to protect themselves from litigation. Unlike the proposed federal law, the CA law encourages businesses that are not being sued to take a proactive step by hiring a certified access specialist. If they are certified as accessible, it helps protect them from lawsuits. If the specialist notes ADA violations, the business gets more lawsuit-shielded time to fix them than they would if they had done nothing.
That said, I think the ADA should actually be expanded to provide for damages in cases where a building or service is truly inaccessible and a customer experienced significant harm or limitation as a result. This would discourage attorneys from splitting hairs over measurements being off by an inch or two, and redirect them to cases that matter. If a person’s trip is ruined because their wheelchair accessible hotel room wasn’t held for them, or their favorite artist played at a club with a step and they couldn’t attend, or a rideshare driver refused to pick them up because they have a guide dog, they should be able to get justice via the civil courts. I would also like to see more grant programs and tax breaks for businesses with substantial barriers that want to remodel for accessibility, but can’t afford to do so.
Every day when I leave the house as a person with a disability, I find another place that isn’t accessible and easily could be. I recently had to wheel several blocks and enter three different buildings before I found one with a bathroom big enough for my wheelchair to fit inside. Such bathrooms have been required for — here’s that number I mentioned again — 27 years. So either those bathrooms haven’t been remodeled since I was crimping my hair and listening to Michael Jackson, or they were remodeled without following the Americans With Disabilities Act. Either option is unacceptable. These businesses do not need more time. Those of us who were children with disabilities when the ADA passed should be able to enjoy an accessible life now. Yet often we can’t — and that means we need a stronger ADA, not a weaker one.
So on behalf of all people with disabilities, those who travel and those who don’t because it’s often inaccessible to us, please contact your Representative and Senator and tell them not to sponsor this bill or vote for it. Our citizens with disabilities deserve better.
267 , 1