by Brian Bergen-Aurand
There are plenty of problems with Disability Law in the United States, and the Americans with Disabilities Act (ADA) is far from perfect. However, H.R. 620 The ADA Education and Reform Act of 2017, which comes up for a vote in the U.S. House of Representatives on 15 February will do nothing to address the problems and everything to exacerbate the imperfections.
As U.S. Congressman Adam Smith (WA-9th Congressional District) said in a statement Tuesday morning, “The Americans with Disabilities Act (ADA) Education and Reform Act would undermine important civil right protections for people with disabilities. I am strongly opposed to this bill, in large part because the legislation places undue burdens on those with disabilities who aim to protect their rights under the ADA. The tenets of this bill strongly conflict with the original ideals of the ADA and it should not become law.”
Disability Law in the United States is about access, reasonable accommodation, and reasonable modification. It is designed to provide remedies for people who have “a physical or mental impairment that substantially limits one or more major life activities,” have “a record of such impairment,” or are “regarded as having such an impairment,” according to the U.S. Equal Employment Opportunity Commission (EEOC) summary.
The ADA requires adjustments of architecture, facilities, materials, policies, or practices as long as they do not cause an undue hardship to the provider or employer. For example, municipalities need to provide curb cuts or ramps to improve mobility; organizations are required to close caption their media for people who are deaf or hearing-impaired; testing services must provide proctors for learning disabled students, and employers need to introduce flexible scheduling and assignments for diabetics or persons on the autistic spectrum.
The key to the ADA and what makes it different from almost all other civil rights legislation is that the ADA seeks to proactively remove barriers. As it is currently interpreted, the ADA does not require individuals to prove they are being intentionally deprived of one or more major life activities but simply that such activities are being limited by the situation. The ADA as we have it is designed to put the onus on the provider—not the individual being substantially deprived access—to keep the obstacles out of the way.
Now, with the introduction of H.R. 620, Congress has moved to strip this singular virtue of the ADA by severely limiting its proactive attitude and introducing a focus on intention toward the removal of barriers. The new law would substantially burden disabled people by forcing them to prove those barriers are limiting before providers would be required to remedy them and then only require providers strive to remedy situations over long periods of time. A provider’s good intentions would come into play.
On the surface, The ADA Education and Reform Act reads like progressive remedial legislation. The bill requires the Department of Justice to develop a program to educate state and local governments and property owners on strategies for promoting access to public accommodations. It also states such a program may include training for professionals to help provide remediation, according to its summary.
However, in its provisions H.R. 620 limits the ADA’s call for proactive remediation and remedy, thus, altering the fundamental conception of the ADA and Disability Law in the U.S. The bill is an attempt to stall or prevent accommodation. It “prohibits” civil actions against providers unless a number of specific steps are followed and a number of written documents are presented demonstrating aggrieved persons actually have been denied access and providers have failed to make necessary modifications within sixty days of the filed complaint.
Furthermore, H.R. 620 requires aggrieved parties cite the specifics points of the ADA providers have violated and document the nature of assistance provided or not in response to the original complaint. In the end, it would always allow providers more time to meet or avoid meeting the requirements.
Taken together, these prohibitions shift the onus onto aggrieved parties and impose significant additional barriers—time, money, access, procedures—atop the original burden. This law would require most of us to encounter a limiting situation, seek legal advice to specify the violation according to the law, and document the actions of the provider over the course of the sixty days after the original complaint. This would add from two to three months to several years to any request for accommodation—the amount of time it takes for many modifications to becoming much less meaningful. Most of us do not have that much time, money, or energy.
While I approve of H.R. 620’s call for a model program designed to include alternative dispute resolution mechanisms and an expedited method to address some of the gaps in the ADA, the underlying prohibitions will do more harm than good.
Disabled folks make up the largest minority in the United States. Almost 57 million people in the country—approximately 20% of the population—had a disability, according to the 2010 census report. (A more recent Centers for Disease Control study states that 53 million adults or 22% of the adult population are disabled.) Most reports show these numbers have increased over the past several decades as our understanding and recognition of disability have changed and that they will continue to climb as the U.S. population ages.
The ADA was passed by Congress in 1990 and signed into law by President George H. W. Bush on 26 July 1990. Many other civil right laws have influenced it. It is modeled after the Civil Rights Act of 1964, which prohibits discrimination based on race, color, religion, sex, or national origin, and the Rehabilitation Act of 1973. It has been influenced by many court cases and later alterations, such as the ADA Amendments Act of 2008, which seeks to clarify the interpretation of “disability” in the broadest terms and allows for its application with the least extensive analysis.
We all benefit from the ADA and its subsequent revisions. Shoppers with carts, parents with strollers, and travelers with baggage appreciate curb cuts. Many folks rely on the captioned videos on their social media pages when enjoying a clandestine screening or when watching in bed without headphones. Students and workers benefit from flexible assignment and work schedules.
Overall, studies reveal that accommodations grant us all a little more access. They even help providers, such as employers, benefit from reasonable modifications, according to studies such as the Job Accommodation Network’s “Workplace Accommodations: Low Cost, High Impact” report. Removing one of the key principles of the ADA—its mandate to remove barriers in a timely, proactive mannner—threatens all these accommodations and the future of such modifications.
The South Seattle Emerald has contacted Representative Pramila Jayapal’s office but so far has not received a response regarding H.R. 620.
Brian Bergen-Aurand is an editor-at-large with the South Seattle Emerald, the founder and chief editor of Screen Bodies and the author of the forthcoming book Coercions. He is also an instructor at Bellevue College and the administrator of the blog foreigninfluence.com where he writes about film, disability, and political culture. Follow Brian Bergen-Aurand on Google+ and on Twitter @bbergenaurand.
Featured image is a cc licensed photo attributed to Maryland GovPics