by Kyle Walls
From the Editor: Kyle Walls works as a program assistant for advocacy and policy at the Jernigan Institute. He is a fantastic communicator, knows how to write, and does so with passion and conviction. He is supervised by John Paré, and anyone who works for John can’t help but feel the passion, conviction, and outrage he feels when the blind are placed at a disadvantage. Here is Kyle’s article, and let us use it to recommit ourselves to stopping the passage of this bill:
On a beautiful October afternoon in Washington, DC, members of the Asian American Hotel Owners Association (AAHOA) arrived at the western steps of the Capitol to take a group photo in celebration of their annual Fall Advocacy Conference. However, they were met by a group of about thirty National Federation of the Blind members from all across the Washington metropolitan area. With their white canes proudly displayed, the NFB members stood defiantly facing west across the National Mall in the exact spot where AAHOA typically takes its photo.
Seemingly wanting to avoid a direct confrontation, the AAHOA photographer prompted the approximately one hundred association members to move to another set of stairs a little farther away, but still with the Capitol building as the backdrop. Like a field general mobilizing troops, John Paré moved our members en masse to a spot right behind them. If the photographer was going to get the Capitol dome in the picture, we would be in the photo as well. We made it clear that we were there for a reason and that we refused to be ignored. These events eventually lead to a direct engagement between John and Chirag K. Shah, AAHOA’s vice president of government affairs and counsel, on the Capitol steps.
It may seem unusual for the NFB to engage a group with such specific focus as the Asian American Hotel Owners Association, but as it turns out, AAHOA is one of the leading proponents of H.R. 620. As you probably already know, H.R. 620, the ADA Education and Reform Act of 2017, is a bill that we have vehemently opposed since its introduction to the House floor in late January. If passed, H.R. 620 will allow alleged ADA violators sixty days to respond to a notice of violation with a proposed plan to remove the access barrier. Following this response, the business in violation will then have an additional 120 days to remove the barrier or to make “substantial progress” in the removal of the barrier. When added together and expanded to the maximum allowable time, these response and compliance periods total approximately six months.
Naturally this approach creates a number of problems for people with disabilities. First and foremost, allowing for a six-month delay in the removal of an access barrier that has been in violation of federal law for nearly three decades is outrageous and more than a little insulting. Businesses that existed prior to the passage of the ADA should have remedied these violations long ago, and for those that were constructed after the passage of the ADA, there is no excuse for the inclusion of access barriers at all. Additionally, if H.R. 620 is passed into law, it will provide no incentive for business, new or old, to become ADA compliant. If there is no swift and immediate consequence for violation, what reason would a business have to become compliant? Realistically, they have no incentive to obey the law until they are found to be in violation of it. This opens the door for businesses to knowingly violate the accessibility mandates of the ADA, a standard of American law for twenty-seven years, until they receive a complaint. In no way is this an appropriate mechanism to mete out justice.
Another aspect of this bill that creates severe cause for concern is the introduction of the standard of “substantial progress.” The bill states that the owner or operator of a business will only face the threat of civil action if they fail to “remove the barrier or to make substantial progress in removing the barrier,” but does not include a definition by which substantial progress can be measured. If a hotel were to post Braille room number labels for two of the ten floors in the building following a complaint, would the “substantial progress” standard be fulfilled? Would this hotel then be free from the threat of civil action until someone else complained that the other eight floors weren’t labeled in Braille? This is an extreme example, but it is certainly not outside the realm of possibility for a statute so vague.
Finally, there is no guarantee this bill will stop overly-aggressive attorneys looking for a quick payout, its intended purpose according to supporters. If an attorney sets the settlement amount at less than the cost to remedy the violation, what would stop a business owner from just paying the settlement amount? In that case, the business is still inaccessible, the business owner has still paid the settlement, and the unprincipled attorney has still received money.
The fact that unscrupulous individuals have found a way to pervert and exploit the intentions of the Americans with Disabilities Act is a sad and sickening revelation. However, weakening and eroding the protections set forth in this landmark legislation will only increase the number of barriers that people with disabilities face every single day.We hear and understand the concerns of business owners and operators, and we are more than happy to work with them to find a genuine solution to the problem. But if they continue down this path in support of this dangerous bill, we will continue to show, just as we did on the steps of the Capitol, that we will not be stopped, we will not be ignored, and we are not going away.