New Laws Could Put Access on the Line at State and National Levels

Imagine being Deaf and pregnant but not being able to discuss your concerns with your obstetrician for six months while waiting for your doctor’s office to get an ASL interpreter. Or what about having to wait two months for a local bank to acknowledge a letter you sent them about being unable to get your wheelchair through their narrow doors to apply for a business loan?

Earlier this year, Arizona state legislators voted to make this a reality for their constituents with disabilities. Arizona Senate Bill 1406 is a state level ADA Notification Bill that will allow businesses throughout the state to take a “wait and see” approach to regulations set forth by the Arizonans with Disabilities Act (AzDA), rather than immediately addressing them.

Under S.B. 1406, disabled people who are denied access are required to notify the business owner in writing, being specific about the location and nature of the violation. The complexity of the requirements provides an additional barrier, making it more likely that disabled people will make procedural mistakes or give up entirely. What’s worse, there is no mechanism in place to address business owners who refuse to co-operate or who supply an unworkable plan. “The bill presumes that the plan [provided by the business owner] is adequate,” said Sarah Kader, Staff Attorney for the Arizona Center for Disability Law. “This whole thing is a mess. It feels like just a general hacking away at disability rights.”

But Kader emphasizes the importance of maintaining focus on the bigger picture. “These are long-term fights,” she says, “because the fight for civil rights is a lifelong, generations long battle. And so we did, to some extent, lose here but we get up the next day and keep fighting.”

The fifty states have been called “laboratories of democracy” because changes can be tried out at the state level before making national changes. California passed SB 269 in 2016, giving defendants an 120 day grace period in accessibility suits and Oklahoma is on the verge of passing SB 651, mandating written notification of website violations be submitted 120 days before filing an injunction. Maryland, Texas, and Florida show signs of drafting their own notification bills as well.

Disabled residents in all of these states can still turn to Title III of the ADA to make a federal complaint…for now. However, due in large part to these state-level “experiments,” ADA notifications could soon be mandated throughout the United States.

House Resolution 620, the Americans with Disabilities Act (ADA) Education and Reform Act of 2017, was introduced to the U.S. Senate by Representative Ted Poe (R-TX), and is currently being considered by the Congressional Subcommittee on the Constitution and Civil Justice. The bill threatens to decimate decades of civil rights victories with excessive notification requirements that would strip away our voices, adding barriers to having our civil rights even considered, let alone addressed.

As we dig into the work of preventing H.R. 620 from becoming law, we should look to state-level battles like Arizona’s for inspiration and suggestions on how to approach the fight.

Larry Wanger, the Chairperson of the Arizona Disability Coalition and Executive Director of the Arizona Statewide Independent Living Council, was part of a group of activists and lawyers that fought vehemently against S.B. 1406. He noted that while lawyers and architects are familiar with the ADA, smaller business owners often support legislation like H.R. 620 because they believe that no one is actively providing education about the ADA. In fact, not only are there extensive resources for business owners on the federal ADA website, but also an extensive network of regional ADA centers that work closely with business owners on accessibility issues, offering training sessions, symposiums, and more. The problem is not a lack of resources so much as a general lack of awareness.

As Kader reflected, ‘I think discrimination based on disability, unfortunately, is still totally acceptable in mainstream society. And so they just don’t see it as a civil rights issue.” Wanger adds, ‘There are absolutely people who don’t know [their responsibilities under the ADA]. But when you make it a civil rights issue, you’ve got it.”

Both Kader and Wanger point out that not only will H.R. 620 affect more people, but the waiting periods and notification rules are much worse than S.B. 1406, further eroding the civil rights of disabled people. Wanger suggests advocates call out their legislators, saying, “you’re going to make us the only minority group in this country that you’re willing to legislate our right to exercise our civil rights and require that x, y, and z happen before we can do that, and you wouldn’t do that to any other minority group, so why us?”

Advocates must continue to fight against laws like S.B. 1406 and H.R. 620 that place excessive burdens and lengthy waiting periods between us and our rights to access. Unless we educate our legislators about the harm of notification bills like H.R. 620 and similar state-level legislation, the ADA Title III regulations that protect us from discrimination and access barriers will are bound to become encumbered with unjust obstacles.

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