Don’t Tread on My ADA!” A Three part series on the attack on the ADA in the 115th Congress (Part II)

Part II: Why US Businesses are winning support for the passage of the harmful ADA Education and Reform Act of 2017 and why they shouldn’t!”

 From Part I of “Don’t Tread on My ADA!”

There is no need to clarify or provide education for the implementation of the Americans with Disabilities Act (ADA) because there are more than enough resources (free) that educate and inform the public about the ADA. This bill was done to address the issues and concerns that business owners have about providing public accommodations for persons with disabilities in 2017, which is 27yrs after the ADA has become law. This bill is supported by the International Council of Shopping Centers (ICSC), the Asian American Retailers Association (AARA), and the National Apartment Association (NAA).   The ICSC represents shopping centers like strip malls around the country. It must be noted that the other larger shopping centers like Willowbrook Mall in NJ and around the country do not complain about the ADA and have worked closely with the disability community to implement the ADA and include all people in their shopping centers. The ICSC member’s complaints are based on the number of law-suits lodged against their members (more on this in Part II).

There is a long history of these ADA notification bills being introduced into Congress as discussed in Part I of this series. The supporters of this legislation claim that they are the victims of hateful lawyers who are attacking them on a regular basis for minor infractions of the ADA. They also claim that this is done in the format of massive or multiple law suits. The law-suits are causing them to go out of business. The ADA is the cause of all of these laws suits and a change must be made in this historic civil right to make this better. They also claim that this has nothing to do with their desire to become accessible to all. Let’s break these points down one by one, in reverse order.

Desire to be accessible

They claim that this problem of law-suits has nothing to do with their desire to become accessible to all. This July the ADA law will be 27yrs old and yet this country continues to struggle with following the law and implementing the intent of the law, which is community integration. Part of this is Public Accommodations for persons with disabilities. It does not surprise me that this country continues this struggle because there are so many civil rights attacks on the many public accommodation laws of this land. But what is infuriating about the supporters of H.R. 620 is their plausible deniability. They are trying to use ignorance of the law as an out for not following the law.

This bill is titled The ADA Education and Reform Act of 2017. There is no need for education of the ADA as there are more than enough resources (free) for businesses to learn about this law. Business owners can get free training, evaluations and learn about tax abatements and credits for their work. This community of organizations the ICSC, AARA & NAA have refused to accept the assistance of the disability rights community in multiple ways. They refuse to sit and meet with the community to discuss their concerns. They refuse to have training sessions about the ADA and how it works at their conferences; attend any of the disability rights organizations conferences where this training is provided and they will not accept RFPs from the disability rights community to present at their conferences. Many have tried and have been rejected.

In review of the ADA Resource Centers many trainings via webinars and in person there are never businesses from this community in attendance. You will find builders, architects, prisons and correction facilities, contractors and the like, but not retail owners. I have attended multiple trainings and done trainings across this nation and have never seen a retailer in the audience or on the attendance rosters provided to all.

History of other industries who started this way and now have changed:

The bus industry started this way. Fighting at all cost to resist and not become accessible. But disability advocates literally put their bodies in front of, under and on buses to demand accessibility. (see Part III) This took years and now here we are almost thirty years later and almost all buses in the U.S are accessible. In addition to those activists who put their lives on the line there were conversations at meetings and conferences, focus groups and dialogue happening at sessions that assisted with moving the bus industry toward accessibility. Now the bus companies attend disability rights organizations conferences and disability rights activists attend their conferences talking about ways to make things accessible.

It seems like if retailers in this country really wanted to be accessible they have every opportunity to do so. The opportunity is cost efficient and sometimes free. Hearing the retailers talk about their not having a problem with being accessible reminds me of the franchised hotel owners who in 2012 did not want the pool lifts to be accessible and tried to stop the implementation of that regulation. They always started their conversation with “We want to be accessible to all. We have no problem with this, but not the pool!”

Read comments by Hotel owners who did not want Pool Lift regulations implemented in 2012. Some of these comments will amaze, shock and appall you. See one such comment below.

The ADA is the problem – really!

The ADA is the cause of all of these law-suits and a change must be made in this historic civil right to make this better. Now this is not in alignment with the supporters of H.R. 620’s rhetoric of “we have no problem with being accessible” but that is using logic right? (Smile) There is no logic in this complaint and reason for support of H.R. 620.

The problem is not with the ADA. There are multiple problems one is some in the legal profession and another is the intentional lack to learn about the ADA by business owners. Even organizations that represent lawyers say this and are on the Hill opposing H.R. 620. There should be an outcry for change in how lawyers function and are sanctioned for their behavior in this work.

Now this is happening in some states, there are judges lodging investigations and sanctioning some attorneys. But at the federal level legislatures have joined the business community in this push to change a civil rights law rather than punish those who engage in the abuse of the law.

Business owners, specifically those supporting H.R. 620 are also part of this problem. The scenario of such cases is something like this:

A person/customer (usually working for the attorney) goes to a strip mall in rural USA to do some shopping, sign their child up for dance class, wash and dry clothes or even go inside a police satellite office to talk with authorities but encounters a number of barriers that do not allow them to enter said entities. This person or a lawyer sends the business owner letters letting them know that they are not in compliance with the ADA with the information about the barriers. These complaints may state in some format that if you don’t fix the barriers we will sue your establishment or you can pay us (amount of funds) and we will ignore this lack of compliance.

 *NOTE: that in the federal ADA law – only injunctive relief – fixing of the barrier and attorney fees (which should be about $500 – $700) are paid out for these types of law suits. But the amounts in these letters are far above the average price and these attorneys will send multiple letters to the same place of business – why? – because the business still has not fixed the barriers and become accessible.

Now this type of work is nefarious in its nature and just wrong on the part of the lawyer. But at the same time, as I stated owning a business in this country is a privilege and one that comes with responsibilities. It is the business owner’s responsibility to take this letter and do a little research about why there are barriers and if they are truly not compliant with the ADA. These days with all the information on the world wide web that is the first place most intuitive persons go to find answers. If you Google ADA, there is a plethora of resources that come up for one to review and most of it is there for no charge to the business. There are also multiple groups of disability rights organizations and advocates who are more than willing to assist a business to become accessible. They want to be customers and work in the business.

Instead of doing this these business owners have decided to just pay off the lawyer with the amount/fee inserted into the form letter of notice of noncompliance. Now how is this the fault of the ADA and not the fault of an uninformed business owner, who purposefully choses to be uninformed? (Remember the first section- refuses to meet with the community, does not attend trainings)

Things that make you say Ummm!

Targeted by lawyers

The supporters of this legislation claim that they are the victims of hateful lawyers who are attacking them on a regular basis for minor infractions of the ADA. They also claim that this is done in the format of massive or multiple law suits. This was discussed a bit in the last section. But here is some information about another side of this
“targeted” victims opinion of these business owners. There are no “minor infractions” of the ADA. If a business is violating the ADA this means that a person with a disability, usually a mobility disability is unable to enter or move around in that place of business. This is no small infraction, this is a denial of services and violation of their civil rights.

If you read some of the comments done by franchised hotel owners in 2012 who fought so hard to not have the pool lift regulation implemented you will see a pattern. As in the example comment below:

Excerpt from one of the comments submitted in 2012:

Between my husband and myself, we have over 65 years in the hotel industry. Never once during those years of service has anyone asked for access to our pool. Never once during any of those years has anyone asked for use of our TDD equipment that by law we have to have. First of all, if a handicap person needs said lift to enter the pool, what are they going to be able to do once they are in there.

There remains the stigma in this country that people with disabilities are unable to do much of anything and they belong in their homes – homebound doing nothing. When people like this writer make this insulting statements it is because they are ignorant and lack interaction with persons with disabilities. In 65 years no one asked for access to the pool because it was not an option and these hotel owners had no desire to find out if it could be an option. Instead they took their antiquated and ill-informed thoughts about disabilities to block an entire community from community integration. This is where the disability sensitivity and ADA 101 training and education for this industry would assist with bridging the gap of a hotel owners thoughts and reality.

This is the same for ill-informed business owners who are part of the hundreds of thousands of members of ICSC, AARA and NAA and are now supporting weakening a civil right to make up for their ignorance.

Maybe these business owners are being targeted by lawyers who are well informed about the lack of knowledge this community has and will not obtain. Knowledge is power! Just a little bit of knowledge about the ADA would go a long way for these business owners. Changing the foundation of a civil rights law will not change this outcome. Lack of knowledge and desire to change will continue to make this industry a target and these lawsuits will not end.

Although there was a delay, the pool lift regulation was implemented by the Obama Administration in 2012. The results are amazing. People with disabilities are swimming and enjoying pools all across the country (check InstaGram and see pictures). They are participating in water aerobics classes, lap swimming for exercise and enjoying pools with their families. The US ParaOlympic swimming team advocated for this regulation to be implemented.

For the couple above, who asked “what are they going to be able to do once they are in there” – well some of them win metals in the Olympics!

Stay tuned for the next Part III in this series to discuss this opposition to a horrific law!

Thank you for reading, please leave a comment and tell all about The WIYATT!

Help oppose this bill and sign petition at Change.org titled: “Don’t Tread on my ADA!”

Goal 5,000 – as of today we have 2, 820 sign ons!

https://www.change.org/p/dara-baldwin-don-t-tread-on-my-ada-oppose-ada-education-reform-act-of-2017-h-r-620

To read more about this bill go to:

https://www.govtrack.us/congress/bills/115/hr620

To see letters of opposition from organizations:

http://ndrn.org/en/public-policy/ada-a-civil-rights.html

Resources that are helpful:

PVA:

Paralyzed Veterans of America have drafted a point paper explaining their opposition to H.R. 620.

http://ndrn.org/images/Images/Issues/ADA/ADA_Notifty_Point_Paper_022217.pdf

DREDF:

Blog post: ADA Under Serious Attack Urgent Action Needed

https://dredf.org/2017/04/17/ada-serious-attack-urgent-action-needed/

Website with information:

https://dredf.org/hr620/

Robyn Powell’s blog on this legislation and how it will affect her life:

https://rewire.news/article/2017/05/30/americans-disabilities-act-attack-congress/

Read comments by Hotel owners who did not want Pool Lift regulations implemented in 2012:

https://www.regulations.gov/docketBrowser?rpp=50&so=DESC&sb=postedDate&po=0&dct=PS&D=DOJ-CRT-2012-0006

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“Don’t Tread on My ADA!” A Three part series on the attack on the ADA in the 115th Congress

Part I: Why all who believe in Civil and Human Rights should oppose – H.R. 620 The ADA Education and Reform Act of 2017!

 

This month the disability rights community will celebrate the 27th anniversary of the Americans with Disabilities Act of 1990. Yet people with disabilities continue to encounter barriers every day that hinder their lives, exclude them from community integration as well as employment and these violations are against the law. There is a bill in the 115th Congress titled The ADA Education and Reform Act of 2017 (H.R. 620) introduced by Rep. Ted Poe (R-TX) and Scott Peters (D-CA) set to weaken this historic civl right.  There are 20 Cosponsors 10 Republicans and 10 Democrats providing it with a bipartisan support rally for the Hill.

This bill is yet another harmful proposed legislation set forth to diminish and create barriers for people with disabilities. When Congress addresses any civil or human rights law for changes, we want those changes to be things that strengthen these laws not weaken them. It is hard to believe that House Representatives human and civil rights champions, like Jackie Speier (D-CA) former Cochair of the House Equality Caucus and Terri Sewell (D-AL) a member of the Congressional Black Caucus (CBC) and others are supporting this legislation, but they are!

The bills description states:

To amend the Americans with Disabilities Act of 1990 to promote compliance through education, to clarify the requirements for demand letters, to provide for a notice and cure period before the commencement of a private civil action, and for other purposes.

There is no need to clarify or provide education for the implementation of the ADA because there are more than enough resources (free) that educate and inform the public about the ADA. This bill was done to address the issues and concerns that business owners have about providing public accommodations for persons with disabilities in 2017, which is 27yrs after the ADA has become law. H.R. 620 is supported by the International Council of Shopping Centers (ICSC), the Asian American Retailers Association (AARA), and the National Apartment Association (NAA). The ICSC represents shopping centers like strip malls around the country. It must be noted that the other larger shopping centers like Willowbrook Mall in NJ and around the country do not complain about the ADA and have worked closely with the disability community to implement the ADA and include all people in their shopping centers. The ICSC member’s complaints are based on the number of law-suits lodged against their members (more on this in Part II).

History:

When the ADA was being crafted the disability, business community and congress came together and came up with an agreement about the implementation of accessibility. Those buildings that were built prior to 1990 would not have to be accessible. But should owners do any type of reconstruction or remodeling on the property then the building would have to become ADA compliant. They also agreed that there would be times that enforcing the ADA laws would be necessary and so there is an opportunity for people to sue businesses.

Over the years the opportunity to file law suits, has been abused by some lawyers in some states. They have done what the media terms as “drive by or frivolous lawsuits” in mass numbers. Anderson Cooper did a horrible piece on this a few months ago for 60 minutes. He left out the disability rights side of this argument and focused his story on the business side. Which has been typical of the press but not all press have done this (more in Part III)

This has angered many business owners and they decided that they want the ADA weakened in order to make this stop. So they have lobbied for what is known as ADA Notification legislation. What these businesses, most of whom are members of ICSC, don’t want to discuss is that they usually are not in compliance with ADA laws and therefore are availing their business responsibility of honoring the civil rights of persons with disabilities. They are blaming the ADA and making it the center of their problem when really it is the actions and behavior of a group of bad actors – in this case bad lawyers.

Today the 115th Congress:

H.R. 620 would require that when a person with a disability encounters a barrier to entering a store or using a restroom or anything in a public business, to send in a written notice with exact provisions of the ADA that are being violated. It then would give the business owner 60 days to acknowledge the barrier and then another 120 days to fix the barrier (6 months in total). No other protected class has to do this should their rights be violated. This would set precedence and could be used against other classes.

As I say when I am advocating against this bill, “I wish you would tell a bunch of women – ‘sorry you can’t come in this place of business and you have to wait 6 months before you can do anything to the business for not letting you partake in what it has to offer’ – they would burn that place down!” Did you see the Women’s March on January 22, 2017 – if the US Parks told them “No you can’t have your March because you are women and you can’t take action against us until June 2017” – I think there would be problems all across the U.S.

The business community supporting this legislation continues to say “we want to be accessible, we just don’t want these lawsuits”. They don’t say why they are not accessible in 2017, 27yrs after the passage of the ADA. They say they need time – that is what the notification is – but how much more time do they need 27 years is not enough to make things accessible? The lawsuits filed may not all be “drive by or frivolous” some, in fact many are legitimate claims on businesses who in 2017 remain inaccessible to all. Not only are these business inaccessible they don’t seek ways to educate themselves to be accessible.

It is a privilege to own a business in the U.S. not a civil right. The word privilege is defined as something regarded as a rare opportunity and bringing particular pleasure. That privilege of owning a business comes with a whole lot of responsibilities.

I find it amazing that these business owners can and do learn how to pay their taxes on time and send them to the right office; they learn CPR so that if someone falls unconscious on their floor they can try to keep them alive; they learn fire hazards and how to address them; they even learn human resource laws and take training on avoiding sexual harassment, labor laws, how to employ youth etc. But they somehow can’t Google how to fix their accessibility problems or where to find assistance to become accessible to all.

It’s not rocket science just ask the people who are trying to use your business. Also the US Government already offers free training, evaluations and assistance in the form of ADA Resource Centers. They also have the Protection and Advocacy offices (1 in every state); the Centers for Independent Living (at least 1 in every state) and a multitude of other free or low cost options for finding help to become accessible. There are tax abatements and credits for upgrading to becoming an accessible business and the information on how to do this can be found through the same networks.

It also amazes me that these same businesses have large signs in their windows “We employ VETS”. But most of our VETS have mobility disabilities and if they can’t get into the business, how is it they want to employ them? If they can get inside, the restrooms are not accessible – who works for 8 hours a day and doesn’t use the restroom?

This legislation also has a section about a “cure period”. In basic terms this means that once the problem is fixed, the business does not want to be sued again for the same problem.

The section about a “cure period” is another discriminatory action against people with disabilities. This makes it seem like there is a time when the barrier will be fixed and this “cures the problem” making it so the business will not have to address the issue in the future. This is not true and also is not done in any other discriminatory actions for other protected classes.

This bill implies that once you make the door wide enough to allow a wheelchair to enter the barrier is fixed. But this is not the case many times businesses will create a larger door but it is not the primary entrance, it’s a door on the side or back. When someone with a mobility disability comes along and needs to use the wider door, John/Jane Doe who has the key is off on vacation for two weeks and the door cannot be opened – the problem is not cured! The ramp in front of or leading in and out of the business is blocked by dishes from the kitchen or boxes from the UPS delivery – this does not equate to cure. Or the ramp is cracked after 10- 15yrs of use in a city like Boston where it snows every winter and there is no maintenance done – this is not a cure. The business owner remains negligent in their privilege responsibility to be accessible and therefore should still remain open to being sued.

In other cases if you have a manager of a business who is a racist and a customer sues and wins the case. The manager leaves the business and the new manager enters but is just as racists as the last one. The same customer can sue the business yet again. In the ADA bill they want the cure (larger door, ramp installment) to be the end of the problem not allowing someone to address the barrier multiple times – it is over for perpetuity. (Really?)

Legislative History

Every Congressional session since the early 2000’s there have been ADA Notification bills like H.R. 620 but this one is much more harmful to the public accommodation laws in Title III of the ADA. The original version of H.R. 620 which was H.R. 3765 in the 114th Congress, had a section (Section 3) that stated if the notification was filed incorrectly it would be a criminal offense and there would be a fine of up to $1,500. *Please let that sink in – a person would be charged with a crime and fined for fighting for their civil right in the United States of America in 2016.

This bill originated in Texas but failed to become law as Texas Republicans, let me state this again Texas Republicans voted this down. Even they said this was way beyond assisting business with lawsuits. Why should someone suffer for fighting for their civil right? This section was removed in the Markup held in July of 2016 in the House Judiciary Committee.

The urgency for concern in the 115th:

When these laws were introduced in the past they never really went anywhere. There were a few hearings and a number of conversations with lawmakers. The 114th Congress was the first time an ADA Notification bill (H.R. 3765) had Democratic support making it a bipartisan legislation. Yes Democrats supporting legislation that is set forth to weaken the civil rights of persons with disabilities. H.R. 3765 actually moved with a Mark-up in the House Judiciary Committee and had a Senate version introduced. The Republicans threw the rules out, although Rep. Paul Ryan (R-WI) the Speaker of the House said they would follow the rules. They skipped right over a mark-up in the Subcommittee, as the rules state and went straight to the full Judiciary Committee.

There was a Mark-up and Vote on July 7, 2016 and the bill was moved out of Committee. There was one Democrat who voted yes on the bill, that was Rep. Scot Peters (D-CA). The only reason it did not go to a full floor vote was because of the busy calendar at the end of the second session of the 114th. That was also the first time there was a Senate version of the bill introduced in the Congress. Sen. Jeff Flake (R-AZ) a member of the Senate Judiciary Committee introduced S.3346   which was the same version as H.R 3765. He introduced the same language so they did not have to conference the bill. It was too late in the work for this to move through the senate and it did not get Democratic support.

In the 115th Congress the bill was introduced earlier this year and has gained both Republican and Democrat support, making it a bipartisan bill. Yes Democrats continuing to support a legislation that weakens the civil rights of persons with disabilities, in fact more in this congress then the last. There is much talk about a full committee mark-up happening in this first session but Rep. Scot Peters is no longer on the House Judiciary Committee so the supporters of this bill need that one vote in the committee to make this a bipartisan vote like they had in the 114th congress and they just might get this.

There are a number of Democrats on this bill who have been life long civil rights activists and it is disappointing to see their names supporting this legislation. There are a number of letters of opposition from multiple civil rights organizations sent to the Hill earlier this year. There are groups of disability rights advocates along with allies who have placed this on their policy agenda. It is imperative that the civil and human rights community stop this bill from advancing to a law.

This is also the first time since these bills have been introduced that we had a House and Senate controlled by the Republicans with a White House that will sign this bill into law. This Administration has been quite clear of its support of businesses and their rights – upholding the Citizens United verdict that states businesses are persons. Just look at the work the 115th Congress did with all of the roll-backs of regulations and rules during the Congressional Review Act (CRA) process (will discuss in a future blog).

All of those roll backs assisted the growth and profit of business. Many put the lives of millions in jeopardy and as many environmental advocates have said the entire earth in peril. Yes it is true we had a House and Senate controlled by Republicans during President George W. Bush’s Administration, but he would never have signed this law. His father President George H. Bush signed the ADA into law in 1990.

Stay tuned for Part II & III in this series to discuss this opposition to a horrific law!

Thank you for reading, please leave a comment and tell all about The WIYATT!

Help oppose this bill and sign petition at Change.org titled: “Don’t Tread on my ADA!”

Goal 5,000 – as of today we have 2, 820 sign ons!

https://www.change.org/p/dara-baldwin-don-t-tread-on-my-ada-oppose-ada-education-reform-act-of-2017-h-r-620

To read more about this bill go to:

https://www.govtrack.us/congress/bills/115/hr620

To see letters of opposition from organizations:

http://ndrn.org/en/public-policy/ada-a-civil-rights.html

Resources that are helpful:

PVA:

Paralyzed Veterans of America have drafted a point paper explaining their opposition to H.R. 620.

http://ndrn.org/images/Images/Issues/ADA/ADA_Notifty_Point_Paper_022217.pdf

DREDF:

Blog post: ADA Under Serious Attack Urgent Action Needed

https://dredf.org/2017/04/17/ada-serious-attack-urgent-action-needed/

Website with information:

https://dredf.org/hr620/

Robyn Powell’s blog on this legislation and how it will affect her life:

https://rewire.news/article/2017/05/30/americans-disabilities-act-attack-congress/

 

 

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