House Amendments to the Americans with Disabilities Act
The House of Representatives recently approved the ADA Education and Reform Act, H.R. 620, which would amend Title III of the Americans with Disabilities Act of 1990 to make it more difficult for individuals with disabilities to enforce their rights under the act.
Title III of the ADA prohibits places of public accommodation such as businesses and private schools from discriminating against individuals with disabilities. The ADA currently allows individuals that have been discriminated against based on a disability to file a lawsuit in federal court to enjoin the business or school from engaging in the discriminatory act. An ADA lawsuit, for instance, might allege that a business violated the act by failing to install a wheelchair ramp that would make its premises physically accessible to an individual with a disability.
H.R. 620 would amend the ADA to prohibit any civil lawsuit based on lack of access to a public accommodation unless the complainant provides notice to the business owner of the ADA violation. Once the owner receives notice, the amendment gives the owner 60 days to provide a written improvement plan to the complainant. The business then has another 60 days to remove the barrier or make “substantial progress” in removing the barrier if additional time is required for reasons beyond the owner’s control. The written notice to the owner must include the address of the business, the circumstances under which the individual was denied access to the public accommodation, whether a request for assistance in removing the barrier was made, and whether the barrier was permanent or temporary.
The amendment would be a major step back for the rights of individuals with disabilities in that it allows business owners to delay ADA compliance until the 120 day period expires (60 days for the improvement plan + 60 days to make the improvement). The 120 period could be extended even further if the business owner claims to have made “substantial progress” – a vague term that promises to be abused and generate a lot of litigation. The amendment also unfairly shifts the burden to disabled individuals to educate and police businesses on ADA compliance rather than requiring businesses to shoulder that burden themselves.
Importantly for readers of this blog, the amendment as passed by the House would have only a limited impact on the education of students with disabilities. The amendment would not affect public school students because public schools are covered by a different part of the ADA (Title II). Although the amendment would apply to students in non-religious private schools, Section 504 of the Rehabilitation Act of 1973 provides substantially the same protections as the ADA and applies to students that attend private schools that receive federal financial assistance. Thus, only students at private schools that receive no federal financial assistance could be materially impacted by this amendment. Notwithstanding its potentially limited impact on education, H.R. 620 is a setback for individuals with disabilities and should be monitored and opposed as it continues to work its way through Congress.