Originally published on February 26, 2018, on the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics Bill of Health blog.

Recently, the House of Representatives voted on and passed the ADA Education and Reform Act of 2017 — an update to the Americans with Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.). The bill changes the process by which private citizens with disabilities and disabling medical conditions can bring lawsuits to enforce statutory access requirements for places of public accommodation. Under Article III of the ADA, “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.” 42 U.S.C. § 12182. This covers attempts to explicitly discriminate against those with disabilities, refusals to make reasonable modifications to accommodate them, and failures to remove physical barriers to access for them — unless removing those barriers is not “readily achievable.” 42 U.S.C. § 12182(b)(2)(A). One of the primary enforcement mechanisms for these provisions is private litigation brought against non-compliant establishments by those negatively affected by violations. See 42 U.S.C. 12188.

As of late, however, there has been growing concern in Congress that this private enforcement avenue is too often abused by plaintiffs bringing unjustified or opportunistic lawsuits, and this is the issue the ADA Education and Reform Act of 2017 seeks to address. Under the proposed bill, lawsuits can no longer be immediately brought against non-compliant establishments. Instead, someone aggrieved by a failure of adequate access must send formal, written notification to the establishment and provide at least four months for the owner to begin dismantling the offending access barrier. Only then — if the owners fail to start the necessary improvements for four months — can a lawsuit be brought. Proponents of the bill believe these additional barriers will curb frivolous and abusive ADA lawsuits brought to enforce accessibility requirements against unsuspecting businesses unaware of their violations.

There are a number of issues with the basic premise of the ADA Education and Reform Act. For starters, the idea of opportunistic lawsuits to enforce the ADA is somewhat farfetched. This is because monetary damages cannot be sought under the statute. The remedies provided by Section III of the ADA include removal of the barrier to accessibility (injunctive relief) and attorney’s fees for the plaintiff — which makes sense, as those with disabilities and disabling medical conditions should not have to foot the bill for vindicating their rights. See 42 U.S.C. 12188 & 42 U.S.C. 2000a–3.   Monetary damages for failing to comply with accessibility requirements are only available under state law, which would not be affected by the amendment to the ADA. Thus, many of the suits about which proponents of the ADA Education and Reform Act are concerned would proceed despite the revised federal law.

More troubling, however, is the framing proffered by those pushing the bill through Congress. Proponents of the bill argue that it is necessary to prevent lawsuits against establishments that are unaware of their violations. According to Congressman Bob Goodlatte (R-Va.), one of the bill’s supporters, “[m]ost business owners…feel blindsided when they’re sued for violations they were unaware of.” While this statement likely reflects genuine frustrations felt by well-meaning business owners, it fundamentally misunderstands the purpose of the ADA and with whom the burden of keeping our society accessible to those with disabilities should rest. At the heart of the ADA Education and Reform Act is the implicit assertion that it is not the obligation of business owners to know whether or not they are in violation of a federal statute. Only after formal notice of their non-compliance must they take steps to cease violating the law. In other words, by eviscerating the threat of a lawsuit, the ADA Education and Reform Act is effectively authorizing businesses to remain inaccessible in violation of a federal law until someone complains about it.

The procedural change at issue in the ADA Education and Reform Act is important because it implicitly changes the conception of what the accessibility default should be. By not incentivizing affirmative compliance measures on the part of business owners, the ADA Education and Reform Act tacitly endorses a default state of affairs in which establishments remain inaccessible until someone goes out of their way to submit formal, written notice of an accessibility issue. Thus, instead of promoting environments where those with disabilities can expect most establishments to be accessible, the ADA Education and Reform Act risks creating environments where accessibility to any given place of public accommodation is a crapshoot — all depending on whether someone else has come along and complained first.

The framing of business owners being blindsided by private enforcement lawsuits under the ADA also shifts the responsibility of ensuring accessibility. Instead of protecting Americans with disabilities by incentivizing affirmative compliance through the threat of litigation, the shift in enforcement procedure would force disabled citizens to be the accessibility police — tasked with the responsibility of auditing establishments they wish to visit. It takes the burden of making our society more open and equitable and places it squarely on the shoulders of the historically marginalized population the ADA was designed to protect. In doing so, it implicitly endorses the idea that those who have been systemically disenfranchised by our society should bear the burden of social progress. Not only is this position antithetical to the Americans with Disabilities Act — it’s simply wrong.

The responsibility for creating a more equitable America is one we share. The ADA was designed to help make society more accessible for disabled Americans — it was not meant to make them the accessibility police. Business owners who wish to take advantage of the opportunities afforded by participation in the public economic life of our society have an affirmative obligation to make their places of business accessible for all. While the changes proposed by the ADA Education and Reform Act may seem trivial, they are a practical and philosophical step in the wrong direction. The ADA Education and Reform Act represents both a barrier to ADA enforcement and an implicit message to disabled Americans that the burden of ensuring progress towards societal acceptance and accessibility for their community is theirs and theirs alone. Americans with disabilities — and our society as a whole — deserve better.