HR 620, and the attack on the Disabled

These days it seems bipartisanship is exhaustingly hard to come by. Extreme politicians on all sides have increased an already deeply polarized electorate. It seems like every year there is the threat of a government shutdown, something that was once an abnormality. It is therefore disheartening to know that one of the few times bipartisanship was shown was on the passage of HR 620.

Image Credit: Katherine Keane

HR 620, also known was the ADA Education and Reform Act of 2017, passed on February 15th through the House of Representatives. This bill broadly reforms the Americans with Disabilities Act (ADA), which was a de-facto bill of rights for the disabled in the United States. In the same way that the Civil Rights Acts of 1964 and 1965 aimed to eliminate public discrimination against people of color, the ADA aimed to eliminate public discrimination against the disabled. In short, the law made it illegal for businesses to have their facilities inaccessible to the disabled, and gave the disabled a number of legal rights, including the ability to sue a business for discrimination.

Under the ADA, if someone who is disabled felt that the facilities of a business were inaccessible, they had three options. The first was to directly contact the business, and basically ask them to fix their mistake. The second was to file a complaint with the Justice Department. The third, and target of HR 620, was to sue the company in question. This third option was basically “the stick” in the stick and carrot for businesses under the ADA (the carrot being business from the disabled community).

In recent years, businesses have been arguing that the stick was too sharp, and that it was too easy to launch frivolous lawsuits against businesses for non-compliance. Supporters have been helped through high profile cases, such as a lawsuit against a Florida art store for placement of toilet paper dispensers.

In response, HR 620 mandates that there be a 60 day “cooldown period” between the launch of a lawsuit, and any actual action. This is to give businesses time to address the concern. It also blurs the requirement that access be mandatory, and adds the provision of a need of “substantial progress” towards access.

“Certain attorneys and their pool of serial plaintiffs troll for minor, easily correctable ADA infractions so they can file a lawsuit and make some cash,” said Primary Sponsor Ted Poe (R-TX). “There is now a whole industry made up of people who prey on small business owners and file unnecessary abusive lawsuits that abuse both the ADA and the business owners.”

That’s it. That is the reason supporters of HR 620 have felt the need to gut one of the most consequential civil rights laws in American history. The argument is more than absurd, as it presents no actual evidence to support the belief of what Congressman Poe claims is a “whole industry”. While ADA lawsuits have tripled since 2013 (Launey), this does not correspond with the passage of the historic 1990 law, and likely has more to do with the increasing use of the internet in litigation. There is also no evidence to believe these have been frivolous lawsuits.

Creating a cooldown period may sound reasonable at first, but it ignores the fact that most people go directly to the business first to try to get their complaint resolved. For employees, that cooldown period could be disastrous. Employers could find any number of “unrelated” reasons to fire an employee before their employees would have the legal right to sue. In that cooldown period, if they make a complaint an employer could remove them for any number of made up reasons with no repercussions.

However, the most devastating part of this legislation is changing from requiring businesses to be accessible to having them make “significant progress” towards being accessible. This vague term will allow businesses to discriminate against the disabled by arguing in court what “substantial progress” means. This seemingly innocuous term was added into the bill with the express purpose of making it easier for businesses to get off clean from clear discrimination.

There is very little information to source here because the problem of this “whole industry [preying] on small businesses” did not exist until the big business community decided it did. Nobody is camping out in Zuccotti Park demanding that the hyper-privileged disabled community stop making frivolous lawsuits. Despite this, the House vote for HR620 was not even close: 225–192.

Where were the Democrats during all of this? The party of the downtrodden? The party of the working class? Well, eleven of them were co-sponsoring the bill, and twelve of them voted for it. It would have had thirteen democratic co-sponsors; however, Tom Suozzi (NY) and Bobby Rush (IL) withdrew, as they only supported a 30 day cooldown period.

Democrats supporting a bill like this is significant, especially when it includes of high profile names such as Collin Peterson (MN) and Kyrsten Sinema (AZ). Sinema is also the frontrunner to fill an open Senate seat in Arizona.

Sinema, despite cosponsoring what should be a Democratic career-ending bill, has the support of 14 Democratic senators, including Majority Leader Chuck Schumer (NY), and potential 2020 hopefuls Senators Cory Booker (NJ), Kirsten Gillibrand (NY), Kamala Harris (CA), Amy Klobuchar (MN), Jeff Merkley (OR), Chris Murphy (CT), Massachusetts Representative Joe Kennedy III, and former Missouri Secretary of State Jason Kander. She also has the support of the National Education Association, Communications Workers of America, the Democratic Senatorial Campaign Committee, Emily’s List, the Human Rights Campaign, and the Planned Parenthood Action Fund. This is destructive because it sends a message to Democrats that “it’s okay to ignore the rights of the disabled — you’ll still be promoted”.

Ignoring the plight of the disabled is one of the easiest things for a society to do, and those at fault are across the political spectrum. Despite the Democrats claiming to stand up for underrepresented groups, the party does not hold a monopoly on supporting disability rights. In fact, two of the most prominent members of the tea party had been incredibly strong on disabled rights for years. Former Governor Sarah Palin (AK) and former Senator Rick Santorum (PA) fought aggressively for legal rights and government programs to support the disabled community and their families. Clearly no party or ideology can claim to be “the party of the disabled”, and that has meant that it has been a cause taken up by those across the political spectrum. On the other hand, it has led to cooperation in tearing down the fundamental provisions that protect the disabled.

The Senate has not yet heard any oral arguments in favor of the bill. However, do not hold your breath for them to reject it. In an election year, moderate Democrats in Trump country are bound to leave their spines at home. Moderate democrats failed to stand up to the bill in the house and most of the Democrats who voted for the bill were either part of the conservative democratic “Blue Dog Coalition,” or a part of the also conservative “New Democratic Coalition.” A Presidential veto would be next to impossible, considering that Trump mocked a disabled reporter while running for president, and worked in real estate fighting regulations like those in the ADA.

HR 620 will likely become law in 2019, and there is almost nothing short of a miracle that can stop it’s passage.

However, states and local governments can enact laws that protect the disabled by requiring businesses to abide by the 1990 standard. When the Minnesota state legislature passed the Minnesota Dream Act in 2013, it ensured protections for that state’s immigrant youth against a federal government that failed to do the same. State legislatures across the country now have the opportunity to show that same bravery, and force employers in their states onto the 1990 ADA standard.

Congressional Democrats have proved not to be saints, and if HR 620 is able to pass the Senate, it should be yet another mark of shame on the dark history of the party. If states with Democratic legislatures fail to put up resistance, then they do not deserve our votes for yet another term of empty promises.