[House Report 115-539]
[From the U.S. Government Publishing Office]
115th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 115-539
======================================================================
ADA EDUCATION AND REFORM ACT OF 2017
_______
January 30, 2018.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Goodlatte, from the Committee on the Judiciary, submitted the
following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 620]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 620) to amend the Americans with Disabilities Act of
1990 to promote compliance through education, to clarify the
requirements for demand letters, to provide for a notice and
cure period before the commencement of a private civil action,
and for other purposes, having considered the same, reports
favorably thereon without amendment and recommends that the
bill do pass.
CONTENTS
Page
Purpose and Summary.............................................. 2
Background and Need for the Legislation.......................... 2
Hearings......................................................... 7
Committee Consideration.......................................... 7
Committee Votes.................................................. 7
Committee Oversight Findings..................................... 11
New Budget Authority and Tax Expenditures........................ 11
Congressional Budget Office Cost Estimate........................ 11
Duplication of Federal Programs.................................. 13
Disclosure of Directed Rule Makings.............................. 13
Performance Goals and Objectives................................. 13
Advisory on Earmarks............................................. 13
Section-by-Section Analysis...................................... 13
Changes in Existing Law Made by the Bill, as Reported............ 14
Dissenting Views................................................. 17
Purpose and Summary
H.R. 620, the ``ADA Education and Reform Act of 2017,''
amends the private enforcement provisions of the public
accommodation requirements of Title III of the Americans with
Disabilities Act to: require a notice and cure period before
the commencement of a private civil action; require 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 for persons with a
disability; and require the Judicial Conference of the United
States to develop a model program to promote alternative
dispute resolution mechanisms to resolve claims of
architectural barriers to access for public accommodations. The
purpose of the bill is to ensure greater protection of
individuals with disabilities while providing business owners
with the opportunity to remedy alleged ADA infractions before
incurring unnecessary litigation costs.
Background and Need for the Legislation
The Americans with Disabilities Act (ADA) was signed into
law by President George H. W. Bush on July 26, 1990.\1\ Its
purpose is ``to provide a clear and comprehensive national
mandate for the elimination of discrimination against
individuals with disabilities.''\2\ Title III of the ADA, in
particular, prohibits places of public accommodation from
discrimination against individuals with disabilities. Entities
subject to the public accommodation requirements are listed in
the ADA, and include places like hotels, restaurants, theaters,
shopping centers, auditoriums, museums, parks, private schools,
day care centers, offices of health care providers, and
gymnasiums.\3\
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\1\See 42 U.S.C. Sec. Sec. 12101 et seq.
\2\42 U.S.C. Sec. 12102(b)(1).
\3\42 U.S.C. Sec. 12181.
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Title III of the ADA provides that ``[n]o individual shall
be discriminated against on the basis of disability in the full
and equal enjoyment of the goods, services, facilities,
privileges, advantages, or accommodations of any place of
public accommodation by any person who owns, leases (or leases
to), or operates a place of public accommodation.''\4\ Among
other things, Title III requires that existing facilities be
free of ``architectural barriers, and communication barriers
that are structural in nature . . . where such removal is
readily achievable.''\5\ Under the rulemaking authority
provided by Title III, the Attorney General has issued
regulations and guidance governing accessibility standards.\6\
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\4\42 U.S.C. Sec. 12182.
\5\Id.
\6\See e.g., 28 C.F.R. Sec. 36.104-607.
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The ADA defines ``readily achievable'' as ``easily
accomplishable and able to be carried out without much
difficulty or expense.''\7\ In addition, the ADA sets out
following factors to determine whether removal of architectural
barriers is readily achievable: the nature and cost of the
action; the overall financial resources of the facility or
facilities involved; the number of persons employed at such
facility; the effect on expenses and resources; the impact of
such action upon the operation of the facility; the overall
financial resources of the covered entity; the overall size of
the business of a covered entity with respect to the number of
its employees; the number, type, and location of its
facilities; the type of operation or operations of the covered
entity; and the geographic separateness and administrative or
fiscal relationship of the facility or facilities in question
to the covered entity.\8\
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\7\42 U.S.C. Sec. 12181(9).
\8\42 U.S.C. Sec. 12181(9)(A)-(D).
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In addition to the enforcement authority granted to the
Attorney General,\9\ Title III provides a private right of
action for preventative relief, including an application for a
permanent or temporary injunction or restraining order.\10\ A
successful plaintiff may also be entitled to attorneys' fees
and costs. The private enforcement provision of Title III
further states that: ``Nothing in this section shall require a
person with a disability to engage in a futile gesture if such
person has actual notice that a person or organization covered
by this subchapter does not intend to comply with its
provisions.''\11\
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\9\See 42 U.S.C. Sec. 12188(b).
\10\42 U.S.C. Sec. 12188(a)(1).
\11\Id.
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ADA COMPLIANCE
A hearing held on May 19, 2016, by the Committee on the
Judiciary's Subcommittee on the Constitution and Civil Justice
exposed how businesses struggle to achieve absolute compliance
with Title III's public accommodation requirements. In his
written testimony submitted to the Committee, David Weiss,
Executive Vice President and General Counsel of DDR Corp.,
stated:
Properties which constitute places of public
accommodation, for various reasons, are always in a
state of change. For example, hotels and motels are
often on routine rehabilitation schedules and shopping
centers are regularly remodeled, modified or
redeveloped. Properties often change over time without
the intentional act of any person. Foundations settle,
or a wet summer season or freeze/thaw cycles during
winter can cause a parking lot or sidewalk to shift,
move or change. These natural occurrences are constant,
even if they are undetectable to the naked eye without
resorting to measuring devices. Paint for parking
spaces fades from year to year and newly placed
concrete is chipped by weather, delivery trucks, snow
plows or parking lot sweepers.\12\
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\12\Legislation to Promote the Effective Enforcement of the ADA's
Public Accommodation Provisions, Hearing on H.R. 3765 Before the
Subcomm. on the Const. & Civil Justice of the H. Comm. on the
Judiciary, 114th Cong. 44 (2016) (statement of David Weiss, Executive
Vice President and General Counsel, DDR Corp.).
The sheer number of technical requirements that businesses
must follow is also a major cause of non-compliance.\13\
According to one legal scholar, ``a single bathroom must meet
at least 95 different standards from the height of the toilet
paper dispenser to the exact placement of hand rails.''
Furthermore, ``[e]ven through good faith efforts, such as
hiring an ADA compliance expert, a business can still find
itself subject to a lawsuit for the most minor and
unintentional of infractions, such as telephone volume controls
needing adjustment.''\14\
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\13\Carri Becker, Private Enforcement of the Americans with
Disabilities Act Via Serial Litigation: Abusive or Commendable?, 17
Hastings Women's L.J. 93, 99 (2006).
\14\Id.
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While the technical requirements under Title III are indeed
necessary to make a place of public accommodation accessible,
businesses claim they cannot identify every defect on their
property despite the highly detailed requirements. According to
the written testimony submitted by Brendan Flanagan on behalf
of the National Restaurant Association in a 2003 hearing before
a subcommittee of the House Small Business Committee:
Unfortunately, as with other laws, the ADA has
created some unintended consequences. One consequence
is that it created confusion among businesses that must
make sure the business is in compliance. The primary
difficulty is that parts of the law are vague and open
to interpretation. The concern I hear regularly from
members [of the National Restaurant Association] is
that `they just want to know what [sic] is they are
supposed to do, so that they can do it.' The problem,
they say, is that, depending on who you ask, you can
sometimes get different answers . . . In many cases, it
can be difficult for even the ADA consultants, local
inspectors and private attorneys to agree.\15\
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\15\Litigating the Americans with Disabilities Act, Hearing Before
the Subcomm. on Rural Enterprise, Ag., & Tech. of the H. Comm. On Small
Bus., 108th Cong. 57 (2003) (statement of Branden Flanagan, Dir. of
Leg. Aff., National Restaurant Assoc.).
The lack of clarity of Title III's requirements under its
public accommodation provisions was also echoed in the written
testimony submitted to the same hearing by Kevin Maher on
behalf of the American Hotel & Lodging Association. According
to Mr. Maher, ``[i]t is a significant barrier to compliance
with the law that the ADA is a highly detailed, yet highly
vague law, unlike other laws and regulations.''\16\ Lawsuits
resulting from non-compliance, according to Mr. Maher, often
result in ``quick, often costly'' settlements.\17\
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\16\Id. at 62.
\17\Id.
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VEXATIOUS ADA LITIGATION
Vexatious ADA litigation under the public accommodation
provisions of Title III has received national attention in
recent years. A report aired on 60 Minutes, on December 4,
2016, for example, featured several small business owners who
were subject to what are known as ``drive-by'' lawsuits.\18\
Michael Zayed, a storeowner in Fort Lauderdale, Florida,
alleged that the person who sued him was not a real customer
because the man claimed he encountered barriers inside the
store that didn't exist.\19\ According to 60 Minutes, some
states do not require plaintiffs in Title III public
accommodation cases to be customers, which allows for a person
to ``simply drive by a store or restaurant,'' see a violation,
and sue.\20\
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\18\https://www.cbsnews.com/news/60-minutes-americans-with-
disabilities-act-lawsuits-anderson-cooper/.
\19\Id.
\20\Id.
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In some cases, plaintiffs do not even need to drive by the
location. Defining what he called ``Google lawsuits,'' Nolan
Klein, a Florida attorney who was also interviewed by 60
Minutes, stated that ``[a] Google lawsuit is where the
suspicion, at least, is that the property was spotted on
Google, Google Earth, Google Maps, whatever the case may be,
and you could see certain things from Google,'' including pool
lifts at motels and hotels.\21\ According to 60 Minutes, ``In
the comfort of your own home, with a few clicks of a mouse, you
can see if a pool near you has one, and if they don't appear to
have a pool lift, like many of these hotel pools we looked up,
you can file a lawsuit . . . just like that.''\22\ Perry
Pustam, a hotel owner in Hollywood, Florida, alleged that he
was targeted by an attorney who had filed 60 such Google
lawsuits in 50 days.\23\
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\21\ Id.
\22\Id.
\23\Id.
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Despite the negative attention in the media, vexatious
litigation is on the rise. According to the law firm Seyfarth
Shaw, which maintains a website on ADA Title III litigation,
``[f]rom January 1 through April 30, 2017, 2,629 lawsuits were
filed [in federal court]--412 more than during the same period
in 2016.''\24\ In 2016, Seyfarth Shaw recorded a 37% increase
from 2015 with 6,601 ADA Title III lawsuits being filed in
federal court.\25\
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\24\Minh Vu, 2017 Federal ADA Title III Lawsuit Numbers 18% Higher
than 2016, Seyfarth Shaw (May 9, 2017), https://www.adatitleiii.com/
2017/05/2017-federal-ada-title-iii-lawsuit-numbers-18-higher-than-
2016/.
\25\Minh Vu, ADA Title III Lawsuits Increase by 37 Percent in 2016,
Seyfarth Shaw (Jan. 23, 2017), https://www.adatitleiii.com/2017/01/ada-
title-iii-lawsuits-increase-by-37-percent-in-2016/.
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Attorneys who are serial filers of these lawsuits likely
contribute to this increase. As part of its report, 60 Minutes
interviewed attorney Tom Frankovich, who admitted to filing
between 2,000 to 2,500 disability access lawsuits in California
in his lifetime.\26\ In Utah, nine separate plaintiffs and six
law firms were responsible for an ``unprecedented'' spike in
ADA Title III cases filed in 2016, including one plaintiff
filing 57 cases and one attorney named as counsel in 105 of the
124 total cases.\27\ Other states, such as Florida, New York,
Texas, and Arizona, have also experienced serial filings by a
single plaintiff or an attorney.\28\
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\26\What's a ``drive-by lawsuit''?, 60 Minutes (Dec. 4, 2016),
https://www.cbsnews.com/news/60-minutes-americans-with-disabilities-
act-lawsuits-anderson-cooper/.
\27\Minh Vu, Utah Is a New Hotbed of ADA Title III Federal Suits,
Seyfarth Shaw (Jun. 27, 2017), https://www.adatitleiii.com/2017/06/
utah-is-a-new-hotbed-of-ada-title-iii-federal-suits/.
\28\See e.g., David Biscobing, Attorney General's Office moves to
label ADA super-suing attorney a `vexatious litigant', ABC 15 (Dec. 15,
2017), https://www.abc15.com/news/local-news/investigations/attorney-
general-s-office-moves-to-label-ada-super-suing-attorney-a-vexatious-
litigant- (Arizona); Debra Weiss, Lawyer who filed hundreds of ADA
suits barred from practice in Texas federal court for three years, ABA
Journal (Jul. 13, 2017), http://www.abajournal.com/news/article/
texas_lawyer_who_filed_hundreds_of_ada_suits_is_temporarily_barred_from_
pra (Texas); Lorena Inclan, Man files ADA lawsuits against 24 Northeast
Florida hotels, Action News Jax (Feb. 4, 2015), http://
www.actionnewsjax.com/news/local/man-files-ada-lawsuits-against-24-
northeast-florid/43358883 (Florida); and Amy Shipley, South Florida
leads nation in controversial disability lawsuits, Sun Sentinel (Jan.
11, 2014), http://articles.sun-sentinel.com/2014-01-11/news/fl-
disability-lawsuits-strike-sf-20140112_1_plaintiffs-attorneys-lawsuits
(Florida).
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Attorneys have been subject to disciplinary measures by
courts due to these serial filings. In 2017, Texas attorney
Omar Rosales, for example, was suspended from practicing law
for acting in bad faith in six of the 385 lawsuits he filed
against small businesses for ADA violations.\29\ The Texas
State Bar subsequently filed a lawsuit against Mr. Rosales,
alleging that he violated several rules of professional
conduct, including the prohibition on frivolous lawsuits.\30\
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\29\Debra Weiss, Lawyer who filed hundreds of ADA suits barred from
practice in Texas federal court for three years, ABA Journal (Jul. 13,
2017), http://www.abajournal.com/news/article/
texas_lawyer_who_filed_hundreds_of_ada_suits_is_temporarily_barred_from_
pra.
\30\David Barer, State Bar Suits Omar Rosales for Professional
Misconduct, KXAN (Sept. 12, 2017), http://kxan.com/2017/09/12/state-
bar-sues-ada-lawyer-omar-rosales-for-professional-misconduct/.
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Minnesota attorney Paul Hansmeier, who has been repeatedly
sanctioned by various courts as a ``copyright troll,'' turned
to filing dozens of ADA lawsuits against Minnesota businesses.
According to Chief Judge Peter Cahill of Hennepin County
District Court, who assigned these cases to one judge, ``The
serial nature of these cases . . . raises the specter of
litigation abuse, and Mr. Hansmeier's history reinforces this
concern.''\31\
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\31\Joe Mullin, Copyright troll Paul Hansmeier now sues small
businesses over ADA violations, Ars Technica (Dec. 16, 2014), https://
arstechnica.com/tech-policy/2014/12/copyright-troll-paul-hansmeier-now-
sues-small-businesses-over-ada-violations/.
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The ability to profit from ADA litigation has given birth
to what at least one federal court has referred to as a
``cottage industry,'' in which serial plaintiffs serve as
``professional pawns in an ongoing scheme to bilk attorneys''
fees.''\32\ The ADA has, at least for these serial plaintiffs,
been changed from a remedial statute aimed at increasing
accessibility into a way for lawyers to make money. As one
legal observer commented,
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\32\Rodriguez v. Investco, L.L.C., 305 F.Supp.2d 1278, 1280-81,
1285 (M.D.Fla. 2004).
Businesses sued under the ADA are very rarely
recalcitrant offenders who obstinately refuse to comply
with known and understood legal requirements. Their
good faith is very rarely at issue. Rather, they are
mostly pliant defendants who misconstrued or missed
excruciatingly detailed regulatory requirements. These
businesses are almost uniformly willing to fix their
properties without the expense and hassle of litigating
in federal court. Haling them into court regardless of
their willingness to comply voluntarily with the ADA
solely to vest plaintiffs' attorneys with an
entitlement to fees provides very little societal
benefit. After all, if ADA litigation achieves no
result beyond that which would have been obtained had
pre-suit notice been given, what value was added by the
decision to sue?\33\
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\33\Alan J. Gordee, Curbing Extortionate Shysterism in ADA
Litigation: Case Law Has Accomplished Some ``Fixes'' on the
Disabilities Act, 47 Orange County Lawyer 38 (2005).
The potential for abuse of the ADA has been noted in
numerous cases in federal courts throughout the country.\34\
For instance, one federal district court explained that the
ADA's statutory scheme, which provides for a private right of
action for injunctive relief, has resulted in an explosion of
private ADA-related litigation that is primarily driven by the
ADA's attorneys' fees provision.\35\ ``Courts have referred to
this proliferation of ADA lawsuits as a `cottage industry' and
have labeled the plaintiffs who file these lawsuits
`professional plaintiffs,' `serial plaintiffs,' and
`professional pawns.'''\36\ As a district court explained, the
``ability to profit from ADA litigation has led some law firms
to send disabled individuals to as many businesses as possible
in order to have them aggressively seek out all violations of
the ADA.''\37\ Rather than informing the businesses of the
violations and attempting to remedy them, lawsuits are filed,
as ``[p]re-suit settlements, after all, do not vest
plaintiffs'' counsel with an entitlement to attorney's fees
under the ADA.''\38\ The result is that ``the means for
enforcing the ADA (attorney's fees) have become more important
and desirable than the end (accessibility for disabled
individuals).''\39\
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\34\See, e.g., Access 4 All, Inc. v. Thirty E. 30th St., LLC, 2006
U.S. Dist. LEXIS 96742 (S.D.N.Y. Dec. 11, 2006); Doran v. Del Taco,
Inc., 2006 U.S. Dist. LEXIS 53551, at *15-16 (C.D. Cal. July 5, 2006)
(citing cases).
\35\Rodriguez v. Investco, LLC, 305 F. Supp. 2d 1278, 1281-82 (M.D.
Fla. 2004) (noting that, in the Middle District of Florida alone,
hundreds of Title III cases had been filed by a relatively small number
of plaintiffs--and their counsel--who had assumed the role of private
attorneys general).
\36\Doran, 2006 U.S. Dist. LEXIS 53551, at * 16 (citations
omitted).
\37\Id. at * 17 (citing Doran v. Del Taco, Inc., 373 F. Supp. 2d
1028, 1030 (C.D. Cal. 2005)).
\38\Brother v. Tiger Partner, LLC, 331 F. Supp. 2d 1368, 1375 (M.D.
Fla. 2004) (internal quotation marks and citation omitted).
\39\Id.
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PRE-SUIT SETTLEMENTS
Despite the fact that attorney's fees are not available to
plaintiffs' counsel in pre-suit settlements, these types of
settlements are nevertheless prevalent. In 2017, for example,
the Arizona attorney general's office filed a motion to dismiss
over 1,000 cases brought by a Phoenix lawyer who had filed more
than 2,000 disability access cases in less than a year.\40\
According to the ABA Journal, ``[t]he plaintiff reportedly had
a standard settlement offer of $7,500'' and settled most of its
cases for an average of $3,900 per case, an amount reportedly
just below the cost of a legal defense.\41\ The incentive for a
plaintiff's attorney to settle, according to the California
Restaurant Association, is that ``the plaintiff's attorney is
more often than not willing to negotiate its fees and expenses,
albeit minimally, to close out a case.''\42\
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\40\Walter Olson, Arizona AG, citing ``systemic abuse'', asks for
dismissal of batch ADA cases, Overlawyered (Aug. 29, 2016), http://
www.overlawyered.com/2016/08/arizona-ag-citing-systemic-abuse-asks-
dismissal-batch-ada-cases/.
\41\Stephanie Ward, Arizona AG asks for mass dismissal of multiple
ADA cases; calls lawyer's tactics `systemic abuse', ABA Journal (Aug.
26, 2016), http://www.abajournal.com/news/article/
arizona_ag_asks_for_mass_dismissal_of_multiple_ada_cases_calls_lawyers_t
act.
\42\Defending a Title III ADA accessibility claim, California
Restaurant Assoc. (Mar. 23, 2017), available at https://
www.calrest.org/ada/defending-title-iii-ada-accessibility-claim.
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The reforms contained in this bill will help provide
greater access to public accommodations for disabled Americans.
Faced with the decision between expensive litigation and
remediating their workplaces quickly, most businesses will fix
the problem quickly, resulting in more business providing more
access more quickly.
Hearings
The Committee on the Judiciary held no hearings on H.R.
620.
Committee Consideration
On September 7, 2017, the Committee met in open session and
ordered the bill (H.R. 620) favorably reported, without
amendment, by a roll call vote of 15 to 9, a quorum being
present.
Committee Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises that the
following roll call votes occurred during the Committee's
consideration of H.R. 620.
1. An Amendment was offered by Mr. Conyers to expand the
scope of the bill to include compensatory and punitive damages.
The amendment was defeated by a roll call vote of 9 to 19.
ROLLCALL NO. 1
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman................... X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Smith (TX)................................. X
Mr. Chabot (OH)................................ X
Mr. Issa (CA).................................. X
Mr. King (IA).................................. X
Mr. Franks (AZ)................................ X
Mr. Gohmert (TX)............................... X
Mr. Jordan (OH)................................ X
Mr. Poe (TX)................................... X
Mr. Marino (PA)................................ X
Mr. Gowdy (SC)................................. X
Mr. Labrador (ID).............................. X
Mr. Farenthold (TX)............................ X
Mr. Collins (GA)............................... X
Mr. DeSantis (FL)..............................
Mr. Buck (CO)..................................
Mr. Ratcliffe (TX)............................. X
Ms. Roby (AL)..................................
Mr. Gaetz (FL)................................. X
Mr. Johnson (LA)...............................
Mr. Biggs (AZ)................................. X
Mr. Rutherford (FL)............................ X
Ms. Handel (GA)................................ X
Mr. Conyers, Jr. (MI), Ranking Member.......... X
Mr. Nadler (NY)................................ X
Ms. Lofgren (CA)...............................
Ms. Jackson Lee (TX)...........................
Mr. Cohen (TN)................................. X
Mr. Johnson (GA)............................... X
Mr. Deutch (FL)................................
Mr. Gutierrez (IL).............................
Ms. Bass (CA).................................. X
Mr. Richmond (LA)..............................
Mr. Jeffries (NY)..............................
Mr. Cicilline (RI)............................. X
Mr. Swalwell (CA)..............................
Mr. Lieu (CA)..................................
Mr. Raskin (MD)................................ X
Ms. Jayapal (WA)............................... X
Mr. Schneider (IL)............................. X
------------------------
Total...................................... 9 19
------------------------------------------------------------------------
2. An Amendment was offered by Mr. Cohen to strike the
``substantial progress'' provision and expand the scope of the
bill to include liquidated damages. The amendment was defeated
by a roll call vote of 9 to 17.
ROLLCALL NO. 2
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman................... X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Smith (TX).................................
Mr. Chabot (OH)................................ X
Mr. Issa (CA)..................................
Mr. King (IA).................................. X
Mr. Franks (AZ)................................ X
Mr. Gohmert (TX)............................... X
Mr. Jordan (OH)................................ X
Mr. Poe (TX)................................... X
Mr. Marino (PA)................................ X
Mr. Gowdy (SC)................................. X
Mr. Labrador (ID).............................. X
Mr. Farenthold (TX)............................
Mr. Collins (GA)............................... X
Mr. DeSantis (FL)..............................
Mr. Buck (CO).................................. X
Mr. Ratcliffe (TX)............................. X
Ms. Roby (AL)..................................
Mr. Gaetz (FL)................................. X
Mr. Johnson (LA)...............................
Mr. Biggs (AZ)................................. X
Mr. Rutherford (FL)............................ X
Ms. Handel (GA)................................ X
Mr. Conyers, Jr. (MI), Ranking Member.......... X
Mr. Nadler (NY)................................ X
Ms. Lofgren (CA)...............................
Ms. Jackson Lee (TX)...........................
Mr. Cohen (TN)................................. X
Mr. Johnson (GA)............................... X
Mr. Deutch (FL)................................
Mr. Gutierrez (IL).............................
Ms. Bass (CA).................................. X
Mr. Richmond (LA)..............................
Mr. Jeffries (NY)..............................
Mr. Cicilline (RI)............................. X
Mr. Swalwell (CA)..............................
Mr. Lieu (CA)..................................
Mr. Raskin (MD)................................ X
Ms. Jayapal (WA)............................... X
Mr. Schneider (IL)............................. X
------------------------
Total...................................... 9 17
------------------------------------------------------------------------
3. An Amendment was offered by Mr. Cicilline to narrow the
scope of the bill to apply it solely to certain small entities.
The amendment was defeated 8 to 19.
ROLLCALL NO. 3
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman................... X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Smith (TX).................................
Mr. Chabot (OH)................................ X
Mr. Issa (CA)..................................
Mr. King (IA).................................. X
Mr. Franks (AZ)................................ X
Mr. Gohmert (TX)............................... X
Mr. Jordan (OH)................................ X
Mr. Poe (TX)................................... X
Mr. Marino (PA)................................ X
Mr. Gowdy (SC)................................. X
Mr. Labrador (ID).............................. X
Mr. Farenthold (TX)............................ X
Mr. Collins (GA)............................... X
Mr. DeSantis (FL)..............................
Mr. Buck (CO).................................. X
Mr. Ratcliffe (TX)............................. X
Ms. Roby (AL)..................................
Mr. Gaetz (FL)................................. X
Mr. Johnson (LA)............................... X
Mr. Biggs (AZ)................................. X
Mr. Rutherford (FL)............................ X
Ms. Handel (GA)................................ X
Mr. Conyers, Jr. (MI), Ranking Member.......... X
Mr. Nadler (NY)................................
Ms. Lofgren (CA)...............................
Ms. Jackson Lee (TX)...........................
Mr. Cohen (TN).................................
Mr. Johnson (GA)............................... X
Mr. Deutch (FL)................................
Mr. Gutierrez (IL).............................
Ms. Bass (CA).................................. X
Mr. Richmond (LA)..............................
Mr. Jeffries (NY)..............................
Mr. Cicilline (RI)............................. X
Mr. Swalwell (CA).............................. X
Mr. Lieu (CA)..................................
Mr. Raskin (MD)................................ X
Ms. Jayapal (WA)............................... X
Mr. Schneider (IL)............................. X
------------------------
Total...................................... 8 19
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4. Motion to report H.R. 620 favorably to the House.
Approved by a rollcall vote of 15 to 9.
ROLLCALL NO. 4
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman................... X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Smith (TX).................................
Mr. Chabot (OH)................................ X
Mr. Issa (CA).................................. X
Mr. King (IA)..................................
Mr. Franks (AZ)................................ X
Mr. Gohmert (TX)............................... X
Mr. Jordan (OH)................................ X
Mr. Poe (TX)................................... X
Mr. Marino (PA)................................ X
Mr. Gowdy (SC)................................. X
Mr. Labrador (ID).............................. X
Mr. Farenthold (TX)............................
Mr. Collins (GA)...............................
Mr. DeSantis (FL)..............................
Mr. Buck (CO)..................................
Mr. Ratcliffe (TX).............................
Ms. Roby (AL).................................. X
Mr. Gaetz (FL)................................. X
Mr. Johnson (LA)............................... X
Mr. Biggs (AZ).................................
Mr. Rutherford (FL)............................ X
Ms. Handel (GA)................................ X
Mr. Conyers, Jr. (MI), Ranking Member.......... X
Mr. Nadler (NY)................................
Ms. Lofgren (CA)...............................
Ms. Jackson Lee (TX)...........................
Mr. Cohen (TN)................................. X
Mr. Johnson (GA)............................... X
Mr. Deutch (FL)................................
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Mr. Jeffries (NY)..............................
Mr. Cicilline (RI)............................. X
Mr. Swalwell (CA).............................. X
Mr. Lieu (CA).................................. X
Mr. Raskin (MD)................................ X
Ms. Jayapal (WA)............................... X
Mr. Schneider (IL)............................. X
------------------------
Total...................................... 15 9
------------------------------------------------------------------------
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee advises that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives is inapplicable because this legislation does
not provide new budgetary authority or increased tax
expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to H.R. 620, the following estimate and comparison
prepared by the Director of the Congressional Budget Office
under section 402 of the Congressional Budget Act of 1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, March 30, 2017.
Hon. Bob Goodlatte, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 620, the ADA
Education and Reform Act of 2017.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Janani
Shankaran.
Sincerely,
Keith Hall.
Enclosure.
cc: Honorable John Conyers, Jr.
Ranking Member
H.R. 620--ADA Education and Reform Act of 2017
As ordered reported by the House Committee on the Judiciary on
September 7, 2017.
H.R. 620 would require the Department of Justice (DOJ) to
establish a program to educate state and local governments and
property owners on strategies for promoting access to public
accommodations for persons with disabilities. The bill would
modify the process by which an individual can pursue civil
action against the owner or operator of a public accommodation
where an architectural barrier limits access. H.R. 620 also
would direct the federal Judiciary to develop a model program
encouraging alternative mediation to resolve claims of
architectural barriers to public accommodations.
Based on an analysis of information from the DOJ and
assuming appropriation of the necessary amounts, CBO estimates
that the DOJ program would cost about $2 million in 2018 and $4
million each year thereafter. About half of those costs would
be for additional personnel and specialists in accessibility
issues and half for other costs to train state and local
officials and private property owners. Over the 2018-2022
period CBO estimates that implementing the program would cost
$18 million.
According to the Administrative Office of the U.S. Courts,
implementing the bill could lead to a decrease in the number of
cases that are filed and fully litigated. CBO estimates that
any savings associated with those changes would offset costs
associated with the model program for alternative mediation.
Enacting H.R. 620 would not affect direct spending or
revenues; therefore, pay-as-you-go procedures do not apply. CBO
estimates that enacting H.R. 620 would not increase net direct
spending or on-budget deficits in any of the four consecutive
10-year periods beginning in 2028.
H.R. 620 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would impose no costs on state, local, or tribal governments.
The CBO staff contact for this estimate is Janani
Shankaran. The estimate was approved by H. Samuel Papenfuss,
Deputy Assistant Director for Budget Analysis.
Duplication of Federal Programs
No provision of H.R. 620 establishes or reauthorizes a
program of the Federal government known to be duplicative of
another Federal program, a program that was included in any
report from the Government Accountability Office to Congress
pursuant to section 21 of Public Law 111-139, or a program
related to a program identified in the most recent Catalog of
Federal Domestic Assistance.
Disclosure of Directed Rule Makings
The Committee finds that H.R. 620 contains no directed rule
making within the meaning of 5 U.S.C. Sec. 551.
Performance Goals and Objectives
Pursuant to clause 3(c)(4) of rule XIII of the Rules of the
House of Representatives, the Committee states that H.R. 620
ensures greater access to public accommodations for individuals
with disabilities while providing business owners with an
opportunity to remedy alleged ADA infractions before incurring
unnecessary litigation costs.
Advisory on Earmarks
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 620 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(e), 9(f), or 9(g) of rule XXI.
Section-by-Section Analysis
The following discussion describes the bill as reported by
the Committee.
Section 1. Short title. Section 1 sets forth the short
title of the bill as the ``ADA Education and Reform Act of
2017.''
Sec. 2. Compliance Through Education. Section 2 directs the
Disability Rights Section of the Justice Department to use
existing funds to provide educational and training grants for
professionals, such as Certified Access Specialists, to provide
guidance for compliance with the public accommodations portion
of the ADA. The intent of this section is to assist states in
providing guidance to property owners to facilitate ADA
compliance, but could also include the development of a form
demand letter for individuals with disabilities that complies
with the requirements of this bill. The section does not
appropriate funds or require the appropriation of new funds.
Sec. 3. Notice and Cure Period. Section 3 provides before a
lawsuit can be commenced up to 180 days after receiving notice
of a violation for property owners to remediate ADA public
access violations. Under this section, litigation is delayed
if, within 60 days of notice of an alleged violation, the
property owner provides a written description of how the owner
will remove any barrier to access that violates the ADA. This
will allow property owners, after being put on specific notice
as to possible ADA violations, to remove, at their own expense,
barriers to accessing public accommodations. The property owner
then has an additional 120 days to remove barriers or make
substantial progress in doing so.
Sec. 4. Effective Date. Section 4 provides that the changes
made by the Act will be effective 30 days after the date of
enactment.
Sec. 5. Mediation for Section 302(b)(2) ADA Actions Related
to Structural Barriers. Section 4 directs the federal courts,
in consultation with property owners and representatives of the
disability rights community, to develop a model program to
promote alternative dispute resolution mechanisms to resolve
ADA violations for public accommodations. The goal of the model
program is to promote access quickly and efficiently without
the need for costly litigation.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, and existing law in which no
change is proposed is shown in roman):
AMERICANS WITH DISABILITIES ACT OF 1990
* * * * * * *
TITLE III--PUBLIC ACCOMMODATIONS AND SERVICES OPERATED BY PRIVATE
ENTITIES
* * * * * * *
SEC. 308. ENFORCEMENT.
(a) In General.--
[(1) Availability of remedies and procedures.--The
remedies and procedures set forth in section 204(a) of
the Civil Rights Act of 1964 (42 U.S.C. 2000a 3(a)) are
the remedies and procedures this title provides to any
person who is being subjected to discrimination on the
basis of disability in violation of this title or who
has reasonable grounds for believing that such person
is about to be subjected to discrimination in violation
of section 303. Nothing in this section shall require a
person with a disability to engage in a futile gesture
if such person has actual notice that a person or
organization covered by this title does not intend to
comply with its provisions.]
(1) Availability of remedies and procedures.--
(A) In general.--Subject to subparagraph (B),
the remedies and procedures set forth in
section 204(a) of the Civil Rights Act of 1964
(42 U.S.C. 2000a 3(a)) are the remedies and
procedures this title provides to any person
who is being subjected to discrimination on the
basis of disability in violation of this title
or who has reasonable grounds for believing
that such person is about to be subjected to
discrimination in violation of section 303.
Nothing in this section shall require a person
with a disability to engage in a futile gesture
if such person has actual notice that a person
or organization covered by this title does not
intend to comply with its provisions.
(B) Barriers to access to existing public
accommodations.--A civil action under section
302 or 303 based on the failure to remove an
architectural barrier to access into an
existing public accommodation may not be
commenced by a person aggrieved by such failure
unless--
(i) that person has provided to the
owner or operator of the accommodation
a written notice specific enough to
allow such owner or operator to
identify the barrier; and
(ii)(I) during the period beginning
on the date the notice is received and
ending 60 days after that date, the
owner or operator fails to provide to
that person a written description
outlining improvements that will be
made to remove the barrier; or
(II) if the owner or operator
provides the written description under
subclause (I), the owner or operator
fails to remove the barrier or to make
substantial progress in removing the
barrier during the period beginning on
the date the description is provided
and ending 120 days after that date.
(C) Specification of details of alleged
violation.--The written notice required under
subparagraph (B) must also specify in detail
the circumstances under which an individual was
actually denied access to a public
accommodation, including the address of
property, the specific sections of the
Americans with Disabilities Act alleged to have
been violated, whether a request for assistance
in removing an architectural barrier to access
was made, and whether the barrier to access was
a permanent or temporary barrier.
(2) Injunctive relief.--In the case of violations of
sections 302(b)(2)(A)(iv) and section 303(a),
injunctive relief shall include an order to alter
facilities to make such facilities readily accessible
to and usable by individuals with disabilities to the
extent required by this title. Where appropriate,
injunctive relief shall also include requiring the
provision of an auxiliary aid or service, modification
of a policy, or provision of alternative methods, to
the extent required by this title.
(b) Enforcement by the Attorney General.--
(1) Denial of rights.--
(A) Duty to investigate.--
(i) In general.--The Attorney General
shall investigate alleged violations of
this title, and shall undertake
periodic reviews of compliance of
covered entities under this title.
(ii) Attorney general
certification.--On the application of a
State or local government, the Attorney
General may, in consultation with the
Architectural and Transportation
Barriers Compliance Board, and after
prior notice and a public hearing at
which persons, including individuals
with disabilities, are provided an
opportunity to testify against such
certification, certify that a State law
or local building code or similar
ordinance that establishes
accessibility requirements meets or
exceeds the minimum requirements of
this Act for the accessibility and
usability of covered facilities under
this title. At any enforcement
proceeding under this section, such
certification by the Attorney General
shall be rebuttable evidence that such
State law or local ordinance does meet
or exceed the minimum requirements of
this Act.
(B) Potential violation.--If the Attorney
General has reasonable cause to believe that--
(i) any person or group of persons is
engaged in a pattern or practice of
discrimination under this title; or
(ii) any person or group of persons
has been discriminated against under
this title and such discrimination
raises an issue of general public
importance,
the Attorney General may commence a civil
action in any appropriate United States
district court.
(2) Authority of court.--In a civil action under
paragraph (1)(B), the court--
(A) may grant any equitable relief that such
court considers to be appropriate, including,
to the extent required by this title--
(i) granting temporary, preliminary,
or permanent relief;
(ii) providing an auxiliary aid or
service, modification of policy,
practice, or procedure, or alternative
method; and
(iii) making facilities readily
accessible to and usable by individuals
with disabilities;
(B) may award such other relief as the court
considers to be appropriate, including monetary
damages to persons aggrieved when requested by
the Attorney General; and
(C) may, to vindicate the public interest,
assess a civil penalty against the entity in an
amount--
(i) not exceeding $50,000 for a first
violation; and
(ii) not exceeding $100,000 for any
subsequent violation.
(3) Single violation.--For purposes of paragraph
(2)(C), in determining whether a first or subsequent
violation has occurred, a determination in a single
action, by judgment or settlement, that the covered
entity has engaged in more than one discriminatory act
shall be counted as a single violation.
(4) Punitive damages.--For purposes of subsection
(b)(2)(B), the term ``monetary damages''' and ``such
other relief'' does not include punitive damages.
(5) Judicial consideration.--In a civil action under
paragraph (1)(B), the court, when considering what
amount of civil penalty, if any, is appropriate, shall
give consideration to any good faith effort or attempt
to comply with this Act by the entity. In evaluating
good faith, the court shall consider, among other
factors it deems relevant, whether the entity could
have reasonably anticipated the need for an appropriate
type of auxiliary aid needed to accommodate the unique
needs of a particular individual with a disability.
* * * * * * *
Dissenting Views
H.R. 620, the so-called ``ADA Education and Reform Act of
2017,'' undermines the civil rights of Americans with
disabilities and would set a dangerous precedent for civil
rights enforcement more generally. By weakening enforcement, it
would undermine the Americans with Disabilities Act's
(ADA's)\1\ goal of full inclusion and integration of persons
with disabilities into the mainstream of American life.
Specifically, H.R. 620 would amend title III of the ADA to bar
victims of disability discrimination by places of public
accommodations--such as hotels, restaurants, theaters, private
schools, private day care centers, and health care providers--
from filing suit to enforce their rights under the ADA unless
the victim: (1) notifies a business of a violation of the ADA's
prohibition on access barriers to public accommodations; and
(2) waits up to 180 days to allow the business to either remedy
the violation or to simply make ``substantial progress''
towards complying with the law. Additionally, the bill mandates
that the required notice of a violation must provide detailed
information about the alleged violation, including the specific
provision of the ADA that has been violated, whether the victim
made a request to the business about removing an access
barrier, and whether an access barrier was temporary or
permanent. By going far beyond requiring notice of a violation,
the bill would effectively impose a standard more akin to the
heightened pleading standard applicable to a legal complaint,
thus potentially dissuading meritorious complaints from being
pursued. No other federal civil rights statute imposes such
onerous requirements on discrimination victims before they can
have the opportunity to vindicate their rights in court.\2\
Also, by delaying the filing of a lawsuit for up to six months
and introducing uncertainty as to whether a lawsuit could be
filed, H.R. 620 will have the additional effect of
disincentivizing lawyers from accepting ADA title III cases,
further undermining a victim's ability to obtain adequate legal
representation and enforce his or her rights in court.
---------------------------------------------------------------------------
\1\42 U.S.C. Sec. Sec. 12101 et seq. (2018).
\2\H.R. 620's proponents claim that the requirement to obtain a
``right to sue'' letter from the Equal Employment Opportunity
Commission (EEOC) prior to filing an employment discrimination lawsuit
pursuant to title VII of the Civil Rights Act of 1964 is a precedent
for H.R. 620's notice and cure requirements. Such a comparison,
however, is inapposite, as the requirement to first exhaust
administrative remedies with the EEOC is intended to allow a government
enforcement agency to have the first opportunity to decide whether to
file an enforcement action on its own against an offending party, not
to simply give a defendant the chance to correct discriminatory
behavior that it should not have engaged in in the first place, as H.R.
620 proposes to do. Moreover, the charge of discrimination that must be
filed with the EEOC is nowhere nearly as detailed or onerous as what is
required by the notice requirement under H.R. 620.
---------------------------------------------------------------------------
Both individually and cumulatively, H.R. 620's notice and
cure provisions will have the effect of inappropriately
shifting the burden of enforcing compliance with a federal
civil rights statute from the alleged wrongdoer onto the
discrimination victim. Moreover, it would undermine the
carefully calibrated voluntary compliance regime that is one of
the hallmarks of the ADA, a regime formed through negotiations
between the disability rights community and the business
community when the ADA was drafted 28 years ago. H.R. 620
would, instead, perversely incentivize a public accommodation
to not comply with the ADA unless and until it receives a
notice of a violation pursuant to H.R. 620's notice provision.
Finally, the bill does nothing to address the problem that its
proponents seek to address, which is the purported concern with
the filing of meritless lawsuits by certain plaintiff's
attorneys, a problem that would be one of state law, not the
federal ADA. H.R. 620's proponents have never adequately
articulated why federal law must be amended to address a
problem driven by state law. Also, the bill makes no attempt to
distinguish between meritorious and non-meritorious lawsuits
and would, instead, impose its harmful and unnecessary
requirements on all ADA claims, regardless of potential merit.
We remain adamantly opposed to any effort to weaken the
ability of individuals to enforce their rights under federal
civil rights laws and are concerned that H.R. 620 would
undermine the key enforcement mechanism of the ADA and other
civil rights laws, namely, the ability to file private lawsuits
to enforce rights. Joining us in opposition is a broad
coalition of 236 disability rights groups, including American
Foundation for the Blind, the Bazelon Center for Mental Health,
the Christopher and Dana Reeve Foundation, the National Council
on Independent Living, the National Disability Rights Network,
the Paralyzed Veterans of America, and Vietnam Veterans of
America. This coalition opposes H.R. 620 because it ``would
create significant obstacles for people with disabilities to
enforce their rights under Title III of the [ADA] to access
public accommodations, and would impede their ability to engage
in daily activities and participate in the mainstream of
society.''\3\ Other members of the coalition opposing H.R. 620
include the AFL-CIO, the Anti-Defamation League, Human Rights
Campaign, the NAACP and the NAACP Legal Defense and Educational
Fund.\4\
---------------------------------------------------------------------------
\3\Letter from the Consortium for Citizens with Disabilities to Bob
Goodlatte, Chairman, & John Conyers, Ranking Member, Subcomm. on the
Constitution and Civil Justice of the H. Comm. on the Judiciary, in
opposition to H.R. 620 (Sept. 7, 2017) (on file with H. Comm. on the
Judiciary Democratic staff).
\4\Id.
---------------------------------------------------------------------------
Additionally, the Leadership Conference on Civil and Human
Rights opposes the bill because it would ``remove incentives
for businesses to comply with the law unless and until people
with disabilities are denied access'' which ``would lead to the
continued exclusion of people with disabilities from the
mainstream of society and would turn back the clock on
disability rights in America.''\5\ Likewise, the American Civil
Liberties Union opposes H.R. 620 because it would
``fundamentally alter [the] way in which a person with a
disability enforces their civil rights and would severely limit
access to places of public accommodations. This misnamed and
misrepresented bill would have a devastating impact on people
with disabilities.''\6\
---------------------------------------------------------------------------
\5\Letter from the Leadership Conference for Civil and Human Rights
to Bob Goodlatte, Chairman, & John Conyers, Jr., Ranking Member, H.
Comm. on the Judiciary, in opposition to H.R. 620 (Apr. 27, 2017) (on
file with H. Comm. on the Judiciary Democratic staff).
\6\Letter from Faiz Shakir et al. to Members of Congress in
opposition to H.R. 620 (Sept. 6, 2017) (on file with H. Comm. on the
Judiciary Democratic staff).
---------------------------------------------------------------------------
For the foregoing reasons and those discussed below, we
strongly oppose H.R. 620 and respectfully dissent from the
Committee report.
DESCRIPTION
H.R. 620 would lay numerous litigation traps for the unwary
plaintiff by imposing various pre-suit notice and cure
provisions. Specifically, section 3 amends the ADA's general
remedies provision to require that before a lawsuit can be
filed to enforce the ADA's public accommodations provisions,
several conditions must either be met by the aggrieved person
or not met by the owner or operator of the public accommodation
at issue. First, the aggrieved person must provide written
notice to the owner or operator of the accommodation ``specific
enough to allow'' the owner or operator to identify the barrier
to access at issue. Second, the owner or operator of the
accommodation must fail to respond within 60 days of receiving
such notice with a description outlining improvements to remove
the barrier to access. Third, the owner or operator must fail
to remove the barrier ``or to make substantial progress in
removing the barrier'' within 120 days after the 60-day
response period. The phrase ``substantial progress'' is
undefined. In short, under this provision, an aggrieved
disabled person could potentially have to wait up to 180 days
before filing suit, assuming a business owner has failed
ultimately to comply with or ``make substantial progress''
toward complying with the law. Notably, there is no provision
in H.R. 620 that would dissuade a business owner from
deliberately using the proposed notice-and-cure provisions as a
dilatory litigation tactic to delay or discourage even
legitimate lawsuits from being filed.
With respect to the ``specific notice'' required under
section 3, that provision further mandates that such written
notice must specify in detail the circumstances under which an
individual was actually denied access to a public
accommodation, including the address of the property at issue,
the specific ADA provisions being violated, whether a request
for assistance in removing a barrier to access was made, and
whether the barrier to access was permanent or temporary. These
requirements appear to be an attempt to impose into a pre-suit
notification regime some of the specificity required of a legal
complaint under the heightened pleading standard of Rule 8 of
the Federal Rules of Civil Procedure.
CONCERNS WITH H.R. 620
I. H.R. 620 would undermine the civil rights of persons with
disabilities.
As with other federal civil rights laws banning
discrimination in public accommodations, title III of the ADA
was enacted with the purpose of ensuring that persons with
disabilities were guaranteed the fundamental right to access
public accommodations and to eliminate ``the unjustified
segregation and exclusion of persons with disabilities from the
mainstream of American life.''\7\ In passing the ADA, Congress
sought to
---------------------------------------------------------------------------
\7\Presidential Statement on Signing the Americans with
Disabilities Act of 1990, 26 Weekly Comp. Pres. Doc. 1165 (July 20,
1990).
Send a clear message . . . to places of public
accommodations . . . that the full force of the Federal
law will come down on anyone who continues to subject
persons with disabilities to discrimination by
segregating them, by excluding them, or by denying them
equally effective and meaningful opportunity to benefit
from all aspects of life in America.\8\
---------------------------------------------------------------------------
\8\135 Cong. Rec. 8506 (1989) (statement of Sen. Tom Harkin).
By passing the ADA, Congress ``affirm[ed] its commitment to
remove the physical barriers and the antiquated social
attitudes that have condemned people with disabilities to
second-class citizenship for too long.''\9\
---------------------------------------------------------------------------
\9\136 Cong. Rec. 17360 (1990) (statement of Sen. Edward Kennedy).
---------------------------------------------------------------------------
While title III issues a mandate to public accommodations
to remove barriers to access, it depends largely on voluntary
compliance by such public accommodations, enforced by the
credible threat of a private lawsuit brought by an aggrieved
individual should such businesses fail to comply. By
disincentivizing voluntary compliance and weakening the
credible threat of a lawsuit, H.R. 620 threatens to undermine
the ADA's goal of fully integrating persons with disabilities
into mainstream society.
A. H.R. 620 wrongly shifts the burden of compliance with a
civil rights law onto victims of discrimination
rather than the businesses that are supposed to be
complying with the law.
Title III of the ADA places the burden of ensuring access
to places of public accommodation--places such as hotels,
restaurants, theaters, private schools, private day care
centers, and health care providers\10\--on the owners and
operators of such businesses. To help achieve this end, title
III is designed to make it easy for businesses to comply with
its requirements. For example, it requires public
accommodations to take reasonable steps to increase access into
their facilities, services, and programs for people with
disabilities. These steps need only be taken if they are
``readily achieveable,''\11\ which the ADA defines as ``easily
accomplishable and able to be carried out without much
difficulty or expense.''\12\ This ``readily achievable''
standard has been the governing legal principle for increasing
access to existing facilities since the ADA's passage almost 28
years ago. It ensures that, rather than having a one-size-fits-
all requirement, businesses have flexibility to determine what
steps are possible based on their size and resources and the
prospective cost of an improvement. A small, family-owned
business does not have to take the same steps as a large
commercial chain. Businesses fought for this standard during
drafting of the ADA because of its flexibility; with
flexibility also comes responsibility for determining, with
guidance and rules from Department of Justice (DOJ), what steps
are possible.
---------------------------------------------------------------------------
\10\42 U.S.C. Sec. 12181 (2018).
\11\42 U.S.C. Sec. 12182(b)(2)(A)(iv) (2018).
\12\42 U.S.C. Sec. 12181 (2018).
---------------------------------------------------------------------------
To provide an incentive to take these steps and help
minimize the cost burden for business, Congress has provided a
tax deduction and tax credit. Section 44 of the Internal
Revenue Code allows a tax credit for small businesses to cover
ADA-related costs. The amount of the tax credit is equal to 50%
of eligible expenditures to increase accessibility in a year,
up to a maximum each year of $10,250.\13\ Section 190 of the
Internal Revenue Code provides a tax deduction of up to $15,000
per year for removal of architectural barriers.\14\ Small
businesses can use these incentives in combination if they
qualify under both sections.
---------------------------------------------------------------------------
\13\26 U.S.C. Sec. 44 (2018).
\14\26 U.S.C. Sec. 190 (2018).
---------------------------------------------------------------------------
Additionally, there also is free technical assistance
available to businesses on how to comply with title III's
requirements. The DOJ has developed compliance manuals and
maintains a telephone information line to respond to questions
as well as a web site with a full complement of technical
assistance materials.\15\ We have long taken the position that
if there is a lack of understanding regarding the ADA's
requirements, the answer is to strengthen assistance, not to
weaken the ADA through a pre-suit notice requirement.
---------------------------------------------------------------------------
\15\U.S. Dep't of Justice, ADA Title III Technical Assistance
Manuel, available at https://www.ada.gov/taman3.html; see generally
U.S. Dep't of Justice, ADA Technical Assistance Materials, available at
https://www.ada.gov/ta-pubs-pg2.html.
---------------------------------------------------------------------------
This intricate framework to encourage voluntary compliance
was achieved through negotiation and compromise between the
disability rights community and the business community in the
process of crafting the ADA. Another important aspect of this
framework, however, is the credible threat of private lawsuits
against businesses that ultimately fail to comply with the ADA
despite the incentives to do so.
Title III authorizes the Attorney General and private
parties to bring lawsuits to enforce its provisions. Private
lawsuits, in the civil rights tradition of ``private attorneys
general,'' have long been understood and acknowledged as a
necessary mechanism to ensure adequate enforcement of civil
rights. Yet as with its voluntary compliance regime, title
III's lawsuit provision represents further compromise between
the business and disability rights communities. Under title
III, while the Attorney General is authorized to sue for money
damages,\16\ private parties may only obtain injunctive relief
and reasonable attorneys' fees and costs.\17\ Moreover, the
award of such attorneys' fees is at a court's discretion, and
the Supreme Court has further potentially limited such awards
in most cases where a defendant voluntarily fixes the
problem.\18\ Thus, any defendant who acts quickly to remedy an
alleged violation is likely to have to pay minimal, if any,
court costs or attorneys' fees.
---------------------------------------------------------------------------
\16\42 U.S.C. Sec. 12188(b)(4) (2018) (authorizing the Attorney
General to sue and seek damages in instances where there is
``reasonable cause to believe that'' there is a pattern or practice of
discrimination or a case raises an issue of ``general public
importance'').
\17\42 U.S.C. Sec. 12188(a) (2018) provides that the remedies and
procedures in section 204(a) of the Civil Rights Act of 1964 are
available to private parties enforcing title III; those referenced
remedies include only prospective injunctive relief. See 42 U.S.C.
2000a-3(a) (2018).
\18\See Buckhannon Board and Care Home Inc. v. West Virginia Dep't
of Health and Human Resources, 532 U.S. 598 (2001) (rejecting the
``catalyst'' theory under which plaintiff could recover reasonable
attorneys' fees if a lawsuit resulted in voluntary remedial action).
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As it is, too few businesses are complying with title III's
directive to remove access barriers to places of public
accommodations. The National Council on Disability (NCD)\19\
reported that ``many public accommodations are not in
compliance with Title III and are not, in fact,
accessible.''\20\ In part, this is because title III does not
provide for aggrieved persons to recover damages, making it
more difficult for a person who has been discriminated against
to obtain legal representation to enforce his or her rights.
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\19\The National Council on Disability (NCD) is an independent
federal agency charged with gathering information about the
effectiveness and impact of the ADA and making recommendations to the
President and Congress. NCD is composed of 15 members appointed by the
President and confirmed by the U.S. Senate.
\20\National Council on Disability, Implementation of the Americans
with Disabilities Act: Challenges, Best Practices, and New
Opportunities for Success (July 26, 2007), available at http://
www.ncd.gov/publications/2007/July262007 [hereinafter NCD Report].
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Rather than trying to improve compliance with title III,
H.R. 620's notice and cure provisions cut in the opposite
direction and, instead, flip the voluntary compliance regime on
its head. By weakening the incentives for businesses to comply
and by making it harder for aggrieved persons to vindicate
their rights in court, H.R. 620 shifts the overall burden of
compliance onto victims rather than wrongdoers. Under H.R. 620,
when there is an access barrier--that is, when there is an act
of unlawful discrimination against a person with a disability--
the onus is placed on the victim to initiate H.R. 620's
cumbersome process for enforcing title III rather than on the
business that is supposed to be in compliance with the nearly
28-year-old law in the first place. Under such a scheme,
businesses have no inventive to comply except in the unlikely
event that they fail to take advantage of H.R. 620's notice and
cure provisions, all of which are designed to stack the deck
against an aggrieved person with a disability. The bill
incentivizes businesses to simply take the not-unreasonable
chance that they will never receive a notice of an ADA
violation pursuant to H.R. 620 despite the existence of one.
Pre-suit notification creates a disincentive to comply
voluntarily with the ADA. Requiring pre-suit notification--a
``get out of jail free'' card--excuses businesses from taking
affirmative steps to remove barriers and allows them to wait
and see if they ever get a notification letter.
In light of the foregoing, Rep. John Conyers, Jr. (D-MI)
offered an amendment during the Committee's markup of H.R. 620
that would have added a provision allowing plaintiffs to
recover compensatory and punitive damages for title III
violations. If H.R. 620's proponents insist on upending the
bargain that the disability rights community reached with the
business community in 1990 to forego damages and agree to
incentives for voluntary compliance, then it is only fair to
allow for the recovery of damages in title III cases brought by
private plaintiffs in order to restore a level playing field in
title III litigation between public accommodations and persons
with disabilities. Unfortunately, the Committee rejected this
amendment by a party-line vote of 9 to 19.
B. H.R. 620's notice and cure requirements constitute a
minefield of litigation traps for unwary plaintiffs
that will have the effect of dissuading
discrimination victims with meritorious claims from
vindicating their rights in court.
H.R. 620 provides numerous means by which businesses can
avoid being held accountable in court for their failure to
comply with title III of the ADA. All of the bill's notice and
cure provisions must be met before an aggrieved party can file
a lawsuit, and a business can raise an aggrieved party's
alleged failure to meet any of these requirements as arguments
for defeating any lawsuit that may be commenced. For instance,
the bill allows business owners to defeat lawsuits by asserting
that they had made ``substantial progress'' toward eliminating
barriers to access, with the the term ``substantial progress''
undefined and potentially leading to protracted and expensive
litigation over its meaning. Similarly, a business owner could
extensively litigate the question of whether notice was
``specific'' enough under H.R. 620's notice requirements. The
bill also requires a disability discrimination victim to wait
up to 180 days before filing suit regardless of the merits of
his or her claims. And, justice delayed is justice denied, for
such a delay makes it more difficult for the victim to retain
counsel or otherwise be able to pursue potential litigation. At
a minimum, courts will have to struggle to determine what the
inherently vague terms of H.R. 620's notice and cure provisions
mean, thereby creating an open invitation for well-financed
business interests to engage in endless litigation that would
drain the typically limited resources of a plaintiff. The
prospect of protracted litigation would be enough to dissuade
discrimination victims from pursuing litigation despite having
meritorious claims.
1. H.R. 620 does not require actual compliance with the
ADA.
Perhaps tellingly, H.R. 620 fails to require actual
compliance with title III by businesses. While delaying the
ability of discrimination victims to file a lawsuit to enforce
their rights and giving business owners numerous ways to
dissuade lawsuits from being filed or to stop them once they
are filed, the bill's notice and cure provisions do nothing to
enforce compliance. In fact, its cure provision states that,
once given notice of an ADA violation, a business has 120 days
to either cure the violation or ``to make substantial
progress'' in doing so. In other words, a business need not
actually fix its violation of the law in order to prevent a
lawsuit to enforce the law from being filed. Moreover, H.R. 620
does not define the term ``substantial progress,'' leaving it
entirely to a business owner's discretion as to whether he or
she has made such progress and, at a minimum, raising the
prospect of expensive and protracted litigation should a
lawsuit be filed over the question of whether the business made
such ``substantial progress.''
In light of the foregoing, and because no provision in the
bill attempts to dissuade business owners who act purely in bad
faith by using the bill's notice and cure provisions primarily
to delay or avoid compliance, Rep. Steve Cohen (D-TN) offered
an amendment that would have removed the ``substantial
progress'' language from the bill and permitted the recovery of
liquated damages when a business owner failed to remove an
access barrier within the 120-day cure period. The Committee
rejected the amendment by a party-line vote of 9 to 17.
2. The bill's notice requirement is overly burdensome and
excessive.
Rather than simply requiring a person with a disability to
notify a business of the existence of an access barrier, H.R.
620 essentially requires the person to plead a legal case with
the specificity of a legal complaint in his or her initial
notice to a business. Such specific information may be very
difficult or impossible for a discrimination victim to provide,
particularly without legal counsel. The bill requires, among
other things, that the written notice to a business must: (1)
cite the specific sections of the ADA alleged to have been
violated; (2) describe whether a request for assistance in
removing the barrier was made; and (3) whether the access
barrier was permanent or temporary. A person with a disability
confronting an access barrier may not know what specific
sections of the ADA were violated, may not be in a position to
request removal of a barrier if the barrier prevents the person
from entering the public accommodation in the first place, and
may not be able to determine whether a barrier was temporary or
permanent depending on the disability that the person suffers
from. Finally, as with the bill's notice and cure provisions,
this provision appears designed to allow a defendant to have a
subsequent lawsuit dismissed or to protract litigation by
raising an argument over whether a notice was sufficiently
specific.
In light of these concerns about the bill's burdensome
notice requirements, Rep. Jamie Raskin (D-MD) offered an
amendment that would have limited the required information to
be contained in a written notice to the address of the property
on which the access barrier existed and a description of the
barrier or circumstances under which a person was denied access
to the public accommodation. Though Rep. Raskin chose to
withdraw this amendment, it was an attempt to ease the bill's
excessive notice requirement.
3. H.R. 620 requires discrimination victims to wait 180
days to enforce their rights.
Justice delayed is justice denied. Under H.R. 620, a
discrimination victim, after giving notice of the ADA violation
to a business owner, must wait up to 60 days for the business
owner to respond to the notice and then must wait for up to an
additional 120 days thereafter to give the business owner--who
should have already been in compliance with the law--time to
comply or ``to make substantial progress'' in complying with
the law. Put plainly, this means that any business owner who
has been alerted to the existence of an ADA violation can force
a victim of disability discrimination to wait up to 180 days
before that person can file suit to enforce his rights under
the ADA, vastly diminishing the chances that such a suit will
be filed, no matter how meritorious. As the American
Association for Justice noted, H.R. 620 ``awards wrongdoers
with a strategic advantage by forcing the disabled community to
wait over half a year before filing a complaint. This is too
long, and the time frame provided for compliance too
uncertain.''\21\
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\21\Letter from Linda Lipsen, C.E.O., American Association for
Justice, to Bob Goodlatte, Chairman, and John Conyers, Jr., Ranking
Member, H. Comm. on the Judiciary (Sept. 7, 2017) (on file with H.
Comm. on the Judiciary Democratic staff).
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4. The bill erodes the ability of victims of discrimination
to obtain adequate legal representation.
H.R. 620's notice and cure requirements would discourage
attorneys from representing individuals with potential claims
under title III because attorneys' fees may only be recovered
if litigation ensues. By delaying and creating uncertainty over
the prospects of litigation for even meritorious claims, H.R.
620 makes it far less likely that a disabled person with a
title III claim would be able to obtain adequate legal
representation, further eroding his or her ability to enforce
his or her civil rights under the ADA.
In light of the onerous burden that H.R. 620's notice and
cure provisions would impose on disability discrimination
victims, Rep. David Cicilline (D-RI) offered an amendment that
would have limited the availability of the bill's notice and
cure provisions to businesses with five or fewer full-time
employees. To the extent that the bill's proponents claim that
vexatious litigation hurts small businesses, the bill's notice
and cure provisions should be targeted towards such businesses.
In contrast, there is no reason why a major corporation such as
Wal-Mart, which has more than adequate resources to comply with
the law and to defend itself in court, should be given the
tools to threaten a litigation war of attrition against
aggrieved persons. Unfortunately, the Committee rejected this
reasonable amendment by a party-line vote of 8 to 19.
II. H.R. 620 does not address the purported problem of vexatious
litigation, a phenomenon that is driven by state law, not the
federal ADA.
Despite widespread lack of voluntary compliance almost 28
years after the ADA's enactment, some have raised concern
regarding lawsuits being filed by a handful of attorneys and
individual or organizational plaintiffs, allegedly for personal
profit rather than a desire to bring about compliance with the
law.\22\ Proponents of pre-suit notification bills like H.R.
620 cite these examples to justify the need for their
legislation.
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\22\See, e.g., Mosi Secret, Disabilities Act Prompts Flood of Suits
Some Cite as Unfair, N.Y. Times, Apr. 16, 2012, available at http://
www.nytimes.com/2012/04/17/nyregion/lawyers-find-obstacles-to-the-
disabled-then-find-plaintiffs.html?pagewanted=all (April 16, 2012).
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To begin with, we note that the fact that an attorney files
numerous similar lawsuits does not, by itself, indicate that
the lawsuits are abusive or that the claims alleged are
illegitimate. The filing of numerous similar lawsuits may, in
fact, indicate the presence of numerous similar violations of
the law. Moreover, H.R. 620 makes no attempt to distinguish
between meritorious and non-meritorious claims with respect to
the application of its onerous notice and cure provisions.
To the extent that there is a problem with vexatious
litigation, however, this problem has mostly been limited to
several states--California, Florida, Hawaii, New York and
Texas--where state laws, unlike the ADA, provide for money
damages.\23\ In these states, some lawyers have filed similar
suits against a large number of small businesses, alleging
violation of both federal (ADA) and state law, and have then
used the threat of state damages to force quick settlements
from defendants.\24\ When faced with this problem, however,
courts have sanctioned parties found to be ``vexatious
litigants,'' have refused to award attorneys' fees where a
lawyer failed to serve a defendant with a demand letter prior
to filing suit, and have dismissed cases for a lack of standing
where the plaintiff cannot allege harm.
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\23\See Cal. Civ. Code (Unrush Act) 54.3(a); Fla. Civil Rights Law,
760.11(5); N.Y. Human Rights Law Sec. 297(9); Haw. Rev. Stat. Sec.
347-13.5; Tex. Human Resources Code 121.004(b).
\24\See NCD Report.
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In Molski v. Mandarin Touch Restaurant,\25\ for example, a
California district court found that the plaintiff was a
``vexatious litigant'' and ordered him to obtain leave of court
before filing any future claims. Mr. Molski, who has a physical
disability that requires him to use a wheelchair, had filed
300-400 lawsuits that were ``nearly identical in terms of the
facts alleged, the claims presented, and the damages requested
[by virtue of California law].''\26\ While acknowledging that
it was ``possible, even likely, that many of the businesses
sued were not in full compliance with the ADA,'' the court
nonetheless sanctioned Mr. Molski and his attorney for filing
suits intended to intimidate business owners into agreeing to
cash settlements. The Ninth Circuit upheld these orders on
appeal, though also noting that ``for the ADA to yield its
promise of equal access for the disabled, it may indeed be
necessary and desirable for committed individuals to bring
serial litigation advancing the time when public accommodations
will be compliant with the ADA.''\27\ Because the allegations
in Mr. Molski's suits were ``contrived, exaggerated, and
def[ied] common sense,'' however, the court concluded that
sanctions were appropriate.
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\25\347 F.Supp.2d 860 (C.D.Cal. 2004).
\26\Id. at 861.
\27\Molski v. Evergreen Dynasty Corp., 500 F.3d 1047 (9th Cir.
2007), cert. denied, 129 S. Ct. 594 (2008).
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Other courts have exercised their discretion under title
III's attorneys' fees provision to refuse to award fees when no
pre-suit demand (notification) letter was given to the
defendant.\28\ Some have even assessed costs against plaintiffs
when allegations were not credible, the suit did not result in
a finding of liability, and no pre-suit notification was
provided.\29\ Courts also have dismissed cases for lack of
standing where the plaintiff is unable to show a real and
immediate threat of future injury in cases, for example, where
a litigant appears to have visited a public accommodation
``solely for the purpose of bringing a Title III claim and
supplemental state claims[.]''\30\
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\28\See Macort v. Checker Drive-In Restaurants, Inc., 2005 WL
332422 *1 (M.D. Fla. Jan. 28, 2005) (``Court is not inclined to award
attorney's fees for prosecuting a lawsuit when a pre-suit letter to the
Defendant would have achieved the same result''); Doran v. Del Taco,
Inc., 373 F.Supp.2d 1028, 1032 (C.D.Cal. 2005) (``fair and reasonable
to require a pre-litigation un-ambiguous notice and a reasonable
opportunity to cure before allowing attorneys' fees in an ADA case.'')
\29\See, e.g., Rodriguez v. Investco, L.L.C., 305 F.Supp. 2d 1278
(M.D. Fla. 2004).
\30\Harris v. Stonecrest Care Auto Ctr., 472 F.Supp.2d 1208, 1220
(S.D. Cal. 2007).
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As these examples illustrate, courts have tools to address
those instances--that have taken place in only a handful of
states--where litigants have inappropriately used the ADA and
corresponding state disability laws for pecuniary gain.
Amending the ADA to require pre-suit notification is not
necessary. Additionally, there has been state-level legislative
action to address abusive lawsuits in those states that do
provide for money damages.\31\ Moreover, while a handful of
states whose laws allow for money damages may be the source for
vexatious litigation, we note that other states whose laws
allow for money damages have not raised similar concerns. For
example, Vermont, Oregon, Kentucky, and the District of
Columbia have not had a similar problem even though their laws
provide money damages against public accommodations that
violate accessibility requirements.
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\31\In 2016, California enacted a law allowing, among other
intended reforms, a 120 day ``grace period'' for ``minimum statutory
damages'' if the defendant meets certain specified conditions,
including a documented prior state inspection for compliance. See S.B.
269, 2016 Leg., 2015-2016 Sess. (Cal. 2016).
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Rep. Eric Swalwell (D-CA) offered an amendment that sought
to address concerns about vexatious litigation while not
closing the courthouse door to discrimination victims. His
amendment would have allowed a defendant to move to dismiss a
case where the same plaintiff or plaintiff's attorney has filed
five or more title III lawsuits within 30 days prior to the
present lawsuit where a defendant could show by clear and
convincing evidence that such lawsuits demonstrated a pattern
of duplicative lawsuits intended solely to cause nuisance,
there was no objective evidence of good faith belief that the
plaintiff expected to prevail, and the defendant had no reason
to believe the existence of and received no notice of a failure
to comply with title III of the ADA. The Committee rejected
this amendment by voice vote.
CONCLUSION
H.R. 620 will have the effect of undermining the civil
rights of people with disabilities because justice delayed is
justice denied. The ADA was intended to integrate people with
disabilities into the mainstream of American society, and to
ensure that the law lives up to its purpose, people with
disabilities must be able to obtain timely legal redress to
erase barriers to access where voluntary compliance incentives
have failed. Yet H.R. 620 erects unnecessary and arbitrary
legal hurdles that will only benefit ADA violators and further
isolate people with disabilities from the rest of society.
Under the bill, places of public accommodation can willfully
forego compliance with the ADA's accessibility requirements.
They will be forced to comply only if a person with a
disability notifies the business of the specific ADA sections
being violated, whether a request was made to remove the
barrier, and whether such barrier was permanent or temporary.
Then, the victim must wait up to 180 days before being able to
file suit. Moreover, a business need not actually rectify a
violation and need only make some undefined level of
``substantial progress'' toward removing an access barrier.
These provisions, individually and taken together, will prevent
meritorious claims from moving forward because they would be
prerequisites to filing suit and would also serve as potential
defenses to be litigated should a suit ultimately be filed.
Such a prospect would deter persons with disabilities who have
legitimate claims from enforcing their rights in court and
undermine the ADA's ultimate goal of integration for persons
with disabilities into mainstream society.
For these reasons, we dissent and urge our colleagues to
join us in opposing H.R. 620.
Mr. Nadler.
Ms. Jackson Lee.
Mr. Johnson, Jr.
Mr. Cicilline.
Ms. Jayapal.
Mr. Raskin.