National Council on Disability Opposes Americans with Disabilities Act Notification Act

4/7/2003

From: Mark S. Quigley of the National Council on Disability, 202-272-2004; 202-272-2074 (TTY)

WASHINGTON, April 7 -- The National Council on Disability (NCD) today announced its opposition to the Americans with Disabilities Act (ADA) Notification Act (H.R. 728), which was introduced in the U.S. House of Representatives on February 12.

NCD is deeply concerned about the proposed ADA Notification Act. The Act proposes 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 ninety days before bringing suit, and will not allow for attorneys' fees and costs. In fact, President George W. Bush declared his opposition to the ADA Notification Act in an interview with Business Week Online (http://www.businessweek.com/bwdaily/dnflash/jun2000/nf00621g.htm).

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 eliminate 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 to require and not to impose obligations that are unrealistic or debilitating to businesses. Each of the major sections and requirements of the ADA takes into account the fact that some businesses are very small local enterprises that may have very limited resources. The following are some of the ways in which the provisions of the ADA provide great deference for the characteristics and needs of small businesses: the exemption for small employers; the undue hardship limitation; the readily achievable limit on barrier removal in existing public accommodations; the undue burden limitation regarding auxiliary aids and services; and the elevator exception for small buildings, among others. NCD addresses this in its policy brief series, "Righting the ADA," found at http://www.ncd.gov/newsroom/publications/03publications.html.

In addition, businesses have had thirteen years to voluntarily comply with the provisions of Title III. The Department of Justice (DOJ), with the assistance of the Internal Revenue Service, notified over six million businesses of their ADA responsibilities each year for seven years and told them how to obtain information on how to comply. The DOJ established a toll-free ADA Information Line in 1994 and it received more than 100,000 calls in 1999. The DOJ also sent out approximately 500,000 copies of the ADA Guide for Small Businesses. It has published and distributed 40 technical assistance documents -- all of which are available 24 hours a day through DOJ's home page on the Internet. The National Institute on Disability and Rehabilitation Research has established regional centers on the ADA to provide technical assistance to businesses. Clearly, businesses have been put on notice of this 13 year-old landmark law.

Moreover, Congress carefully decided to allow attorneys' fees because it did not allow damages. Congress understood that if it were going to rely on private parties to enforce the ADA it had to have some provisions encouraging the private bar to take the cases. The argument that too many frivolous lawsuits have been brought by rogue attorneys is disingenuous. Frivolous lawsuits are barred by Federal Rule of Civil Procedure 11.

An amendment to the ADA, such as the proposed ADA Notification Act, is superfluous. While at first impression, the proposed amendment's 90 days notice requirement does not appear to be an imposing burden for an aggrieved individual to correct an ADA violation, this provision, combined with its accompanying disallowance of attorneys' fees and costs within the notice period, will have the drastic effect of creating a nationwide exemption to the ADA. It encourages businesses to do nothing until they get a letter of notification-no other civil rights law has a notice provision like this.

NCD recommends that Congress follow its own careful considerations when enacting the ADA- and not pass this unnecessary amendment.

NCD is an independent federal agency that makes recommendations to the President and Congress on disability policy. In this role, NCD is responsible for advising on the implementation, impact and effectiveness of the ADA. NCD first proposed the concept of the ADA in 1986 and Congress relied on and acknowledged the influence of NCD, its reports, and its testimony throughout the legislative process. Since passage of the ADA, NCD has remained actively involved in monitoring its impact and advising federal entities on policy issues.

For more information, contact Mark Quigley or Joan Durocher at 202-272-2004.