Guest Blog: ADA Safeguards

December 26, 2017

Sean Edward Pevsner

In my last guest post, Why You Should Oppose the ADA Education and Reform Act of 2017, H. R. 620, I explained how this bill would cause significant damage to the rights of people with disabilities. I mentioned that, since its passage in 1990, opponents of the Americans with Disabilities Act (ADA) claim that the ADA subjects private businesses to overly onerous regulations. But in fact, the ADA already includes protections for businesses, as I’ll detail below.

First, the ADA tells businesses exactly how to stay in compliance in the Americans with Disabilities Act Accessibility Guidelines (ADAAG). The ADAAG provides specific schemes for facility and service accessibility, such as specifications for wheelchair ramps, door and hallway widths, restrooms and parking spaces, among others. The ADAAG is readily available on the internet for all companies to use as a reference when making their facilities and services accessible. The Disability Rights Section in the Justice Department provides free technical ADAAG support to assist businesses in complying.

Additionally, the ADA provides protections for companies against undue burdens or fundamental alteration to their businesses. It states that private entities do not need to make modifications to their services or goods, if such modifications “would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations.” Title III of the ADA further says that private entities do not need to provide accommodations or modifications if they would pose an undue burden to the entity’s financial situation or pose a significant difficulty in providing them. In 1990, President Bush and an overwhelming majority in both houses of Congress believed that these safeguards were sufficient to protect the interests of businesses.

However, over the years, people have falsely claimed that the ADA has intruded on the private sector. The ADA allows plaintiffs to obtain their attorney’s fees from defendants, if they win their case. Private companies have argued that plaintiff attorneys abuse this provision to extort money out of businesses. However, federal courts have the authority to impose sanctions on plaintiffs who file bad faith lawsuits. If businesses make a good faith effort to comply with the ADAAG, they should definitely fight against frivolous ADA lawsuits.

In addition to seeking sanctions on bad faith plaintiffs, businesses can file complaints on the attorneys for these plaintiffs with the state bar associations. The Texas Disciplinary Rule of Professional Conduct bars attorneys from filing unmeritorious lawsuits, and other state bar associations have similar rules against frivolous lawsuits.

These safeguards—clear guidelines and support to get into compliance with the ADA; protection against undue burden; and threat of punishment for both plaintiffs and attorneys who pursue bad faith lawsuits—are already in place to protect businesses from those who would misuse the ADA.

While more protections may help to further reduce frivolous ADA lawsuits, H. R. 620 isn’t the way to provide them.

Take Action! Has your Congressional representative signed on as an H. R. 620 co-sponsor? Send him an email asking him to withdraw his support.

About Sean

A man in a power chair rolls across a sidewalk with Austin's skyline and a bright blue sky behind him.Sean Pevsner has severe cerebral palsy. He was one of the first students with disabilities to take mainstream classes in the Arlington Independent School District. He went on to major in Greek and Latin at UT, while making significant contributions to the university’s community. The UT Classics Department bestowed on him the WJ Battle Award for excellence in Greek and Latin translation. He graduated in 1998, receiving several awards for his advocacy and contributions to the university. Mr. Pevsner graduated from UT Law School in 2004. In 2012, Mr. Pevsner established a firm with his best friend, Mark Whitburn. Their firm, Whitburn & Pevsner, PLLC, practices ADA, FHA, IDEA, probate and guardianship law.

@TXDisabilities