By J. Colin Knisely
On February 15, 2018, the U.S. House of Representatives passed the Americans with Disabilities (ADA) Education and Reform Act . The bill passed by a vote of 225 to 192, with 12 Democrats voting in favor of the bill. Most of the Democrats who joined with Republicans to support the bill were from California, where state law allows plaintiffs to recover actual damages and a statutory minimum of $4,000 for each time the plaintiff visited a business and encountered an access barrier, in addition to the attorney’s fees available under the ADA.
Proponents of the bill argue that the amendment to Title III of the ADA will curb the number of frivolous, “drive-by” lawsuits against businesses, which have increased dramatically in the past few years. H.R. 620 would create a “notice and cure” requirement before any legal action could be taken against a business for an alleged failure to comply with the standards set by Title III. Under H.R. 620, a claimant must first send a business owner or operator a written notice “specific enough to allow such owner or operator to identify the specific barrier.” The written notice must further specify “in detail the circumstances under which an individual was actually denied access to a public accommodation” and “whether a request for assistance in removing an architectural barrier was made.”
A claimant can only file a lawsuit if the business does not respond to the written notice within 60 days with “a written description outlining improvements that will be made to remove the barrier.” If the business responds, but “fails to make substantial progress” in implementing the improvements, a lawsuit can be filed.
Critics of the H.R. 620 have argued that it would effectively exempt businesses from compliance with Title III until the business receives notice of an alleged compliance issue, and that it would shift the burden of protecting access onto the person with the disability, whom critics have argued would have to become experts on the legal code in order to properly comply with the notice requirements of H.R. 620.
H.R. 620 has now moved to the Senate, where the fate of the bill is uncertain. However, there is currently no companion bill in the Senate, and Republicans in the Senate would still need to gain the support of several Democrats to meet the Senate’s 60 vote threshold.