Title III of the Americans With Disabilities Act imposes a proactive duty on businesses subject to the ADA to remove architectural barriers and other obstacles that impede disabled persons’ access to an existing public accommodation. For years, lawmakers have grappled with how to protect disabled persons and, at the same time, not overburden those subject to the ADA. The House of Representatives’ so-called ADA Education and Reform Act of 2017 (H.R. 620) introduced earlier this year appears to be gaining some momentum after the House Judiciary Committee voted to advance it on September 7. Disabled persons interest groups are opposed to this bill, contending that it would chill businesses from being proactive about ensuring that disabled persons have access to their facilities.
In contrast, for years, businesses subject to the ADA have struggled to comply with the ADA and to contend with what they perceive as meritless complaints filed by drive-by plaintiffs alleging ADA violations without ever encountering a barrier to access. For new construction subject to the ADA, an occupancy permit issued by a local jurisdiction (or a building inspection), although not required to ensure ADA compliance, will often require review of the project for compliance with the accessibility requirements. Ensuring compliance with the access requirements for existing developments and redevelopments in many cases poses greater challenges because, as originally constructed, the structure may not have design features that are conducive to ADA compliance, requiring extraordinary expenditures to bring them into compliance.
H.R. 620 would, among other things, prohibit civil actions based on the failure to remove an architectural barrier to access into an existing public accommodation unless:
(1) the aggrieved person has provided written notice specific enough to identify the barrier to access to the owners or operators, and
(2) the owners or operators failed to timely provide the person with a written description outlining improvements that will be made to remove barrier (60 days) or failed to timely remove the barrier or make substantial progress after providing such a description (120 days).
The aggrieved person’s notice would be required to include
(1) the property’s address,
(2) the specific ADA sections alleged to have been violated,
(3) whether a request for assistance in removing an architectural barrier was made, and
(4) whether the barrier was permanent or temporary.
In addition, the Judicial Conference of the United States would be required to develop a model program to promote alternative dispute resolution mechanisms to resolve aggrieved parties’ claims. The model program is expected to include an expedited method for determining relevant facts related to the alleged barriers and steps to resolving any accessibility issues before litigation.
California has tried several times to pass more industry friendly laws with little success. There is now a CASp certification process that provides some limited coverage to “qualified defendants.”
This bill remains one to watch.