On February 15, the House in a 225 to 192 vote passed legislation to amend the Americans with Disabilities Act. The ADA Education and Reform Act (H.R.620) would require plaintiffs hoping to sue businesses in federal court to first deliver written notice to that business, specifically detailing the illegal barrier to access. The business would then have 60 days to develop a plan to address the complaint and outline improvements to remove the barrier. Finally, the business will have an additional 60 days to remove the barrier, or in the very least make substantial progress in doing so.
The effect of this bill would be far-reaching. By placing the burden on the plaintiff, businesses would no longer need to be proactive in understanding their obligations under the law or making their facilities accessible. Proponents of this bill argue that this change will prevent frivolous lawsuits, and instead allow businesses to spend their resources fixing the accessibility issue rather than litigating in court. Although this bill passed with some ease in the House, it may prove more challenging in the Senate, where the majority will need support from many more members to surpass the 60-vote threshold.
As currently written, Title III of the ADA requires places of public accommodation, newly constructed places of public accommodation, and commercial facilities to comply with accessibility standards. Because the ADA has been the law for over 25 years, it is reasonable that employers should be aware of the law and their requirements under it. By shifting this responsibility to the plaintiff, employers will likely experience a drastic reduction in accommodation litigation.
Should employers be advocating for the passage of this bill? Reduced cost of litigation would supposedly free up resources for removing accessibility barriers. Small business owners would not have to consistently worry about the threat of lawsuits. But, as employers, is it appropriate to disclaim this responsibility of providing access to a traditionally excluded and marginalized community? Do we feel comfortable giving employers a “free pass” and mandating that those with a disability wait upward of 120 days or more to gain equal access?
These are questions that will be answered when the Senate considers the bill in the coming weeks. Until then, the burden remains on the employer to know the law and to implement any measures that will ensure accessibility for all.