An Update from the NCIL ADA / Civil Rights Subcommittee
On January 14, 2021, Representative Ken Calvert (R-CA), along with Representative Tom Rice (R-SC), introduced the ADA Compliance for Customer Entry to Stores and Services Act (H.R. 77), deceptively referred to as the ACCESS Act. This bill is essentially the same as previous Americans with Disabilities Act (ADA) notification bills, like H.R. 4099 and H.R. 620. H.R. 620, the ADA Education and Reform Act, passed the House in February 2018, and resembled many of the previous versions. H.R. 4099 was introduced in 2019 with an additional provision (Section 6) regarding Web Content Accessibility Guidelines (WCAG) 2.0 standards. This section is again included in H.R. 77.
Like the ADA notification bills before it, H.R. 77 would create additional barriers that would weaken our protected civil rights enforced under the Americans with Disabilities Act (ADA). Specifically, H.R. 77 would amend Section 308 of the ADA as it pertains to architectural barrier violations outlined in Sections 302 and 303, requiring that anyone who has been discriminated against (based on the failure to remove an architectural barrier to access an existing public accommodation) complete a cumbersome series of steps before commencing a civil action, detailed below.
First, the person with a disability must provide the business owner/operator with a specific written notice detailing how they are being discriminated against; they then must wait 60 days for the business to provide a written description outlining improvements they plan to make; the business must then be given an additional 60 days to make “substantial progress” in removing the barrier. Only after those 120 days, if the business fails to make “substantial progress,” can a lawsuit move forward. Business owners have already been allowed significant notice of more than 30 years since the passage of the ADA first laid out requirements to provide physical accessibility for customers - why must we continue waiting? As the legal maxim goes, “Justice delayed is justice denied.”
Like H.R. 4099, H.R. 77 would also require a study on the Web Content Accessibility Guidelines (WCAG) 2.0 standards. WCAG 2.0 standards are a set of recommendations for making web content (information in a website or application) more accessible. This bill would require that within one year of the bill’s passage into law, a study be completed to determine whether WCAG 2.0 standards should be required, or if accessibility widgets (plug-ins that are supposed to automatically make websites more accessible but tend to interfere with the technology some disabled people need), or providing the information/services by telephone constitutes a reasonable accommodation. Our answer: absolutely not! Accessibility needs of people with disabilities do not exist only in physical spaces, but also without a doubt extend to online spaces. As modern life becomes more reliant on digital technology, we must fight for inclusion in the virtual world!
Finally, H.R. 77 includes mandates for “Compliance Through Education” (Section 2) and “Mediation for ADA Actions Related to Architectural Barriers” (Section 5). We feel it necessary to point out that both education and mediation have long been in place at the Department of Justice (DOJ). The website ADA.gov very clearly lays out information explaining the law, provides technical assistance materials, and shares contact information for the ADA Information Line staffed by ADA Specialists. Information about the DOJ’s ADA Mediation Program is also available on their website.
As with previous ADA notification bills, the burden falls on people with disabilities to prove we have been harmed - NOT on businesses who have had more than 30 years to come into compliance with the law. Also as with previous ADA notification bills, H.R. 77 would remove any incentive for businesses to comply with ADA standards until or unless notification is received, therefore encouraging businesses to ignore the law.
As you likely remember, during the 115th Congress, H.R. 620 passed the House of Representatives with bipartisan support. Had the bill passed the Senate, the President indicated he would have signed it. Since H.R. 77 was introduced, there have been no additional co-sponsors. HOWEVER, this is a dangerous bill that has the potential to garner bipartisan support once again if we as a community do not fight against it. We must continue to tell our personal stories to our legislators of how H.R. 77 would unquestionably infringe upon our rights as persons with disabilities and negatively impact our inclusion in society. We ARE equal and deserving of the same civil rights protections as others.
Please support people with disabilities by telling your legislators not to support this devastating bill.