Congress intends to revise the Americans with Disabilities Act so it is legal to NOT do business with disabled persons without first getting an education on the subject. Being accessible is now optional.
Should someone file a civil complaint, their journey begins by waiting for the business to first learn what it means to do business with them. HR 620 refers to this as an “education” or “notice and cure period”. In this period, public, state and federal businesses can ignore (or haphazardly apply) proper structures and accommodations for disabled persons until someone complains, thereby forcing them to comply.
This puts the responsibility for enforcing compliance on handicapped persons who simply seek the same access and opportunities as everyone else, but are forced to demand it. Under this new legislation, those who seek action against businesses for ADA compliance must first provide written notice. Businesses then have 60 days to respond in writing, and 120 days to make necessary changes before being subject to civil action.
Notwithstanding an abundant supply of free resources that have accumulated over the past 25 years… the government budgeted 18 million dollars for education on the topic.
“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.” https://www.cbo.gov/publication/53147
Why this change to the ADA?
An increase in lawsuits motivated government officials to revise the Americans with Disabilities Act, in the mistaken belief ADA lawsuits are solely for financial gain. [Under Title III, private plaintiffs are not eligible to receive monetary damages.]
“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.” https://www.cbo.gov/publication/53147
What is Their Definition of Disabled?
The term “disability” is defined…
(A) a physical or mental impairment that substantially limits one or more major life activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment
“Impairment” is defined…
The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures such as –
(I) medication, medical supplies, equipment, or appliances, low-vision devices (which do not include ordinary eyeglasses or contact lenses), prosthetics including limbs and devices, hearing aids and cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment and supplies;
(II) use of assistive technology;
(III) reasonable accommodations or auxiliary aids or services; or
(IV) learned behavioral or adaptive neurological modifications.
Items II and IV are usability and accessibility areas of which website owners should take note.
Why Website Owners Should Care about HR 620
It makes perfect sense to want to do business with everyone. Notwithstanding, discrimination exists in many forms, from skin color to religion, sexual orientation, and yes… whether someone has a physical handicap, disability or temporary injury.
For websites, there are no actual laws to follow unless your site is a .gov or .edu. The gray area is ecommerce, which is where a large majority of lawsuits are filed by customers unable to make an online purchase. Netflix, Amazon, Target, a huge pile of clothing, food stores and others have faced lawsuits because their websites did not accommodate use by disabled persons.
A more compelling reason to build an inclusive website from the start is because it’s a good business practice. It communicates an effort to be customer service oriented. If you own a website in a competitive industry, and your competitor builds an accessible business and you do not… they will attract more visitors. Those visitors are likely to share and make referrals.
Is Anyone Fighting HR 620?
The ACLU wrote,
“The “ADA Education and Reform Act” upends a key provision of the ADA by preventing people with disabilities from immediately going to court to enforce their rights and to press for timely removal of the barrier that impedes access.
Without this critical enforcement mechanism, compliance under the ADA will suffer and people with disabilities will be denied the access to which they are entitled to under the law.“ https://www.aclu.org/other/hr-620-myths-and-truths-about-ada-education-and-reform-act
The Bill is sponsored by 97 Republicans and 11 Democrats.
“Today, the House Judiciary Committee moved to gut the rights of people with disabilities to have equal access to restaurants, hotels, theaters, ball parks, web sites, and all places and services to which all non-disabled citizens have access. In 1990, Congress, through the Americans with Disabilities Act (ADA), affirmed the civil rights of all people with disabilities to have access to all businesses and services offered to the public. Those offering services to the public have had 27 years to make their services accessible to all. H.R. 620 would further delay making services and settings accessible and remove the incentive to make businesses and other public entities accessible for people with disabilities. Good legislation would provide support to help businesses comply with the ADA. I stand with the over 250 disability groups that oppose this approach and will fight to protect the civil rights as enshrined in the ADA.” Casey Statement on House Judiciary’s Decision to Advance Civil Rights Gutting Legislation https://www.casey.senate.gov/newsroom/releases/casey-statement-on-house-judiciarys-decision-to-advance-civil-rights-gutting-legislation
You Do It Because You Care
You may even want accessibility compliance to be packed in with your brand reputation and business requirements. While many company owners fear an ADA lawsuit, the motivation for others is simple human compassion.
The guidelines for website accessibility are free to learn. In fact, they have all been updated. WCAG2.0 was updated in December of 2017 and Section 508 was officially refreshed January 18, 2018. Most accessibility testing tools have not been updated to meet the new criteria, but they are great places to start testing.
Usability and accessibility are historically the last items on a web developers list. Progressive companies build in both from the start, and also require their third-party vendors to be inclusive. Therefore, if you are a provider, you may want to promote that your site or app is accessible. Most companies have no idea that accessibility compliance is well documented and desired in the UK and Australia, which makes wrecking the American ADA even more frustrating.
To Learn More:
- Revised 508 Standards Refresh Toolkit https://section508.gov/refresh-toolkit
- Global Disability Rights Now http://www.globaldisabilityrightsnow.org
- The Wave of Website and Other ADA Accessibility Claims – What You Should Know https://www.littler.com/publication-press/publication/wave-website-and-other-ada-accessibility-claims-%E2%80%93-what-you-should-know
- Overview of Concerns with H.R. 620, the ADA Education and Reform Act of 2017 https://dredf.org/hr620/overview-of-concerns-with-h-r-620/
- COALITION LETTER OF OPPOSITION FOR ADA EDUCATION AND REFORM ACT OF 2017 (H.R. 620) – https://www.aclu.org/letter/coalition-letter-opposition-ada-education-and-reform-act-2017-hr-620
- Proposed Law Could Let Businesses Off the Hook for Complying with Disabilities Act – https://consumerist.com/2017/09/14/proposed-law-could-let-businesses-off-the-hook-for-complying-with-disabilities-act/