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Default NCD Testimony on Proposed Policies to Amend the ADA

Submitted to the House Judiciary Subcommittee on the Constitution for a
hearing "Examining Legislation to Promote the Effective Enforcement of the
ADA’s Public Accommodation Provisions”

May 19th, 2016

FOR THE RECORD

Policy Statement of the National Council on Disability Regarding Amending
the ADA to Require Notice

The National Council on Disability (NCD) offers this testimony for the
written record in accordance with our mission as an independent federal
agency tasked with making recommendations to the President and Congress on
policy matters affecting the lives of Americans with disabilities. Given
this mission, NCD is responsible for providing advice regarding the
implementation and enforcement of the Americans with Disabilities Act
(ADA) – a law with which NCD has an inextricably connected history.

NCD first proposed the concept of the ADA in 1986. Congress relied on and
acknowledged the influence of NCD, its reports, and its testimony
throughout the legislative process leading up to its passage and in 1990,
the ADA was signed into law by President George H.W. Bush. Since passage
of the ADA, NCD has remained actively involved in disability policy,
including working with Congress to amend the ADA in 2008, recalibrating it
to address discrimination in a broad array of circumstances after
interpretation of the law was narrowed by the federal courts.

The proposed policies before the Committee at today’s hearing, “Examining
Legislation to Promote the Effective Enforcement of the ADA’s Public
Accommodation” all fall under the general rubric of ADA notification
bills, which have come before this committee year after year. In 2012, NCD
submitted a Statement for the Record to this Committee expressing concern
regarding legislation that proposed “…to amend the ADA to require that an
individual alleging a business is inaccessible provide written notice to
the business about the specific ADA violation before bringing suit.”[1]
Additionally, NCD reminded the Committee that:

Title III of the ADA was intended to balance the interests of small
businesses along with the accessibility concerns of people with
disabilities. It is a myth that the ADA’s requirements are too hard on
small businesses .The legislative history of the ADA is rife with concern
about the burden on small businesses and as a result, Title III does not
require any action with respect to existing buildings that would cause an
undue burden or that is not readily achievable. The approach of the ADA
was not to exempt small businesses from the requirements of the bill, but
rather to tailor the requirements of the Act to take into account the
needs and resources of small businesses– to require what is reasonable and
not to impose obligations that are unrealistic or debilitating to
businesses.[2]

Since NCD issued this statement, businesses small and large--and the state
and federal agencies that regulate them--have had four more years (nearly
26 total years now) to ensure compliance with the reasonable and balanced
requirements of the ADA, and yet legislation that seeks to place the onus
on the person with a disability who is prevented from spending their money
to purchase goods and services from an inaccessible business is again
under consideration by this Committee. Furthermore, among the current
slate of bills, H.R. 3765 not only requires that the aggrieved person with
a disability notify the owner-operator of the allegedly inaccessible
business about their violation of the ADA, but also subjects the
complainant to criminal liability if the notice does not meet strict
statutory requirements. This proposed provision would be unique in civil
rights law, and would have a chilling effect on anyone aware of this
provision. Ironically, an innocent person with a disability who simply
wanted to make a business owner aware of a violation of a well-settled
26-year old law might unwittingly violate this new notice requirement and
face a stiff penalty while a business owner is free to flout the access
requirements of the ADA. This sort of imbalance is certainly not in
keeping with original Congressional intent which already took all parties’
interests into consideration against the backdrop of an individual’s
inalienable civil rights.

While we all support small businesses and appreciate the valuable role
they play in our economy, opening a business necessarily entails adherence
to certain rules. For over 50 years, federal law prohibits businesses from
engaging in discrimination based on race, religion, or sex, and for 26
years, they have been required to make their businesses accessible to
people with disabilities. These requirements are widely known and
ascertainable by any responsible business owner. Shifting the
responsibility to aggrieved individuals with disabilities who may already
have suffered the indignity of discrimination is bad national policy, and
it is an unacceptable and unprecedented rollback of the “…guarantee [of]
fair and just access to the fruits of American life which we all must be
able to enjoy…” that George H.W. Bush recognized the ADA to be when he
signed this landmark legislation. At the signing, President Bush declared
eloquently, “[W]e rejoice as this barrier falls for claiming together we
will not accept, we will not excuse, we will not tolerate discrimination
in America.”[3]

26 years later, surely we cannot be ready to declare that equality is a
failed experiment and that discrimination against people with disabilities
is tolerable and acceptable in America, and that those that have been
treated unfairly must stay silent or risk criminal penalties for a less
than artful protest of their mistreatment.

As we did four years ago when this Committee considered similar
legislation, NCD recommends that Congress follow its own careful
considerations when enacting the ADA and reject these unnecessary
amendments.

Link to online version:
http://go.usa.gov/cJbUm
National Council on Disability
1331 F Street, NW, Suite 850
Washington, DC 20004
202-272-2004 Voice
202-272-2074 TTY
202-272-2022 Fax
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