Today, Congressman Jerrold Nadler (D-NY), Ranking Member of the House Judiciary Committee, delivered the following remarks in opposition to H.R.620, the ADA Education and Reform Act of 2017, which undermines the civil rights of Americans with disabilities by weakening the incentive for businesses to comply with the Americans with Disabilities Act, making it harder to enforce the rights of Americans to access a place of public accommodation:
"Mr. Chairman, H.R. 620, the so-called “ADA Education and Reform Act of 2017,” would undermine the civil rights of Americans with disabilities by significantly weakening the key enforcement tool of the Americans with Disabilities Act of 1990, which is the filing of private lawsuits by discrimination victims. Congress passed the ADA 28 years ago with the goals of fully integrating persons with disabilities into the mainstream of American life and counteracting discriminatory social attitudes towards the disabled. By making it harder for persons facing such discrimination to vindicate their rights in court, H.R. 620 ultimately undermines these goals.
"H.R. 620 would, among other things, institute a pre-suit “notice and cure” regime under Title III of the ADA, which prohibits discrimination on the basis of disability in public accommodations like hotels, restaurants, private schools, and health care providers.
"Specifically, the bill would prohibit a disability discrimination victim from filing a lawsuit to enforce his or her rights under Title III unless the victim first notifies a business of a Title III violation. The victim must then wait up to 180 days to allow the business either to comply with the law or simply to make some undefined level of “substantial progress” toward complying with the law. No federal civil rights statute imposes such onerous requirements on discrimination victims before they can have the opportunity to enforce their rights in court.
"Both individually and cumulatively, H.R. 620’s notice and cure provisions will have the effect of inappropriately shifting the burden of compliance with a federal civil rights statute from the alleged wrongdoer onto the discrimination victim and, perversely, incentivizing businesses not to voluntarily comply with the ADA.
"Moreover, because H.R. 620 does not define the term “substantial progress,” the bill leaves it entirely to a business owner’s discretion as to whether he or she has made such progress. At a minimum, this raises the prospect of expensive and protracted litigation over the question of whether the business made sufficiently “substantial” progress should a lawsuit be filed. Such a prospect, along with the need to wait 180 days before filing a lawsuit, may be enough to deter discrimination victims with meritorious claims from even sending a notice of a violation, much less filing suit to enforce their rights.
"In addition, H.R. 620’s notice requirement is overly burdensome and excessive. Rather than simply requiring an aggrieved person to notify a business of the existence of an access barrier, H.R. 620 essentially requires the person to plead a legal case in his or her initial notice. For instance, a victim must cite the specific provision of the ADA that has been violated, describe whether the victim made a request to the business about removing an access barrier, and explain whether an access barrier was temporary or permanent. Such specific information may be very difficult or impossible for a discrimination victim to provide at the notice stage, particularly without legal counsel.
"Finally, H.R. 620 does not even address the purported problem identified by its proponents, who claim that pre-suit notification is needed to stop lawyers from filing numerous similar lawsuits alleging both federal ADA claims and state law claims against numerous businesses in order to force quick settlements. That is because many states allow for damages under their state disability rights laws. But this ignores the fact that Title III of the federal ADA only permits recovery of reasonable attorney’s fees and costs, not money damages. In other words, it is state law, not the federal ADA, which provides the financial incentive for pursuing numerous lawsuits.
"Additionally, the filing of multiple suits alleging violations of the ADA or state disability laws says nothing about the underlying merits of those suits or the intent of the parties involved. To the extent that lawyers actually engage in misconduct, courts already have the tools to address such misconduct, including by imposing sanctions, refusing to award attorney’s fees, or dismissing cases that have no legal or factual basis.
"A pre-suit notification requirement, together with a lack of any requirement to actually comply with the law, is a virtual “get out of jail free” card for every public accommodation in America. H.R. 620 substantially diminishes the primary incentive for voluntary compliance with Title III, which is the credible risk of being sued and having to pay reasonable attorney’s fees and costs. H.R. 620’s notice and cure requirements, by starkly diminishing the risk of litigation, would send a clear and devastating message to every public accommodation in America that there is no need to comply voluntarily with the ADA. Instead, the bill tells businesses that they should simply wait and see if they ever receive a notice of a violation, and to forget about the rights and needs of people with disabilities.
"As former Homeland Security Secretary Tom Ridge wrote recently in The Hill in opposing H.R. 620, “it is unacceptable to roll back the civil rights of people with disabilities. We should ensure access, not progress. We should expect businesses to know and comply with their obligations, not require neighbors and colleagues with disabilities to shoulder the burden of informing and educating businesses about those obligations. We should not turn the simple business of everyday life into a complex and lengthy ordeal for people with disabilities.”
"For the foregoing reasons, I oppose H.R. 620 and urge the House to reject this deeply flawed bill.
"I reserve the balance of my time."