H.R. 620: Larger Than Emojis

I’m not convinced that an emoji is worth a 1,000 words, but when it comes to sending messages, all that matters is whether the receiver understood the sender’s message. And if that can be done with a few drawings, more power to emoji lovers. Based on the emoji craze—they’ve even had their own movie—I had incorrectly assumed that, given how many emojis exist, all persons were represented by emojis. Not so. Even though there are 2,666 emojis in the Unicode Standard as of June 2017, representations of  people are still pretty limited. Disabled persons were largely ignored until a few days ago when Apple asked the Unicode Consortium to add 13 new emojis to represent persons with disabilities. Social media is celebrating Apple’s proposal, and I’m celebrating too, but only for a few seconds. Now, I fully support inclusive language and emojis, but I am concerned that the new emojis are getting more attention than legislation designed to restrict the rights of disabled persons.

More specifically, I saw very little coverage of bill H.R. 620 “ADA Education and Reform Act of 2017,” which passed on February 15, 2018. This bill is designed to heavily alter the Americans with Disabilities Act (ADA) of 1990 by introducing a written notice/waiting period for addressing non-compliant buildings. Instead of pushing for compliancy that doesn’t seem like an afterthought, the 115th House of Representatives was concerned that the current ADA laws are too restrictive and costly for businesses, and representatives in favor of the amended law felt that too many businesses are currently being sued by money-grubbing disabled persons and lawyers.

The bill’s sponsor Representative Ted Poe (R-TX) couldn’t simply say that he wanted to make it easier for businesses to avoid being ADA compliant, so language was added calling for the creation of an educational program to inform “state and local governments and property owners on strategies for promoting access to public accommodations for persons with a disability [and] … may include training for professionals to provide a guidance of remediation for potential violations of the [ADA].”

This is only a guise. The next part of the bill reads:

(Sec. 3) The bill prohibits civil actions based on the failure to remove an architectural barrier to access into an existing public accommodation unless: (1) the aggrieved person has provided to the owners or operators a written notice specific enough to identify the barrier, and (2) the owners or operators fail to provide the person with a written description outlining improvements that will be made to improve the barrier or they fail to remove the barrier or make substantial progress after providing such a description. The aggrieved person's notice must specify the circumstances under which public accommodation access was denied.

The bill goes on to say that the justice system would have to create a mechanism outside of civil lawsuits to settle claims of non-compliance. This smells of a bureaucratic backlog for claims that never go investigated, despite the use of the phrase “expedited method for determining relevant facts… before litigation.” The bill claims that disputes would be settled more quickly outside of the courtroom before a lawsuit should even be considered, but I highly doubt this.

Supporters of H.R. 620 say they are fighting against needless lawsuits that are plaguing small private businesses. They claim that “discrimination chasers” are trivializing the plight of small businesses trying to compete with big box stores and online retailers. In reality, the choice to place businesses’ needs over the disabled is yet another example of telling groups of people that they are not welcome in public spaces.

As Senator Tammy Duckworth wrote on Twitter on February 15th, “Ever since I lost my legs when an RPG tore thru the cockpit of my Blackhawk I was flying over Iraq, getting around has been difficult—even w/the #ADA, I can’t always enter public spaces & have to spend a lot of time planning how to get frm 1 place to the next.” If the Senator cannot get into public spaces, imagine what it’s like for someone with less affluence.

H.R. 620 supporters also indicated that they believe business would continue to be ADA compliant without the threat of lawsuits. This belief is overly optimistic.  Businesses acting in good faith may seem like a good idea, but I believe it would only be a matter of time before most businesses would openly choose to avoid being ADA compliant when it was no longer required. At the end of the day, the reality is that a business exists to make money and ADA compliance can hit a bottom line.

Even the current system is based on resolving complaints from disabled persons; the government does not send agents out to inspect building for compliance, which may be what the House should have been trying to fix with H.R. 620 instead of making it harder to seek retribution. In a Q & A document, PACER Center tells activists, “Some people are surprised to learn there are no government officials paying surprise visits to employers, state and local government agencies or businesses to see if they are in compliance.” Often lawsuits are one of the few ways to prompt a company to take action to resolve an issue, if the company will not respond to an informal complaint.

H.R. 620 seeks to restrict when a lawsuit can be brought forward. Being able to threaten and/or carry through litigation is often one of the only ways to ensure that disabled individuals are given a voice against private businesses. H.R. 620 would give the power of deciding when a lawsuit is acceptable to the Department of Justice (or a designated arm of the DOJ), and I fear that the DOJ will sluff off accessibility issues as minor annoyances.

In response to H.R. 620, Susan Mizner, Disability Counsel for the ACLU, wrote that this bill would essentially undermine the entirety of the 1990’s ADA law because the written notice requirement would nullify the need for building planners to consider accessibility in their designs. Mizner also points out that the 1990 ADA law already takes into consideration individual business circumstances:

Private businesses must ensure new buildings are accessible and remove barriers in older buildings where it is “readily achievable”—a standard that considers the cost of the change and the resources of the business. For example, a major hotel [may] spend several thousand dollars to make a few of their rooms accessible, but a small business might only be expected to spend a few hundred dollars to grind down a three inch lip into a doorway, or to put a ramp up two stairs.

Under H.R. 620, ADA compliance would only be required if someone complains and waits six months plus for the business to make “reasonable changes,” and considering how marginalized people with disabilities are treated, only a few complaints are going to be taken seriously. Most will go ignored. The written notices will be filed away, left unaddressed, because the aggrieved has been stripped of the might of civil lawsuits.

In the limited coverage of H.R. 620, the “what comes next?” was barely discussed. The conversation essentially ended with “it passed” without an analysis of the bill’s implications. For now, it seems that the passage of H.R. 620 is symbolic because there is no evidence that the Senate is launching its own version of this bill at this time. Therefore, these changes to the ADA laws will not be implemented… yet.

In the future, the Republican Senate, at the behest of its corporate lobbyists, may see ADA laws as too restrictive and will choose to pick up the ideas in H.R. 620. Maybe this will never happen. Maybe it will happen tomorrow. I am concerned that the revival of H.R. 620 in whatever form it’d take in the Senate may go under the radar too. 

Disabled persons and their advocates are essentially required to be legal scholars already because every day may be another fight for accessibility, whether its fighting for a theater to provide a Sign Language interpreter or closed captions for a local play, fighting insurance to approve necessary medicine, fighting school districts for equal educational opportunities, or fighting workplace and housing discrimination. That’s not to mention poor TV captions or stop lights that are not equipped with sound effects. I’m only skimming the surface of steps that should be taken to make buildings and information more accessible for disabled persons.

Instead of taking away disabled persons’ voice and mechanism for retribution, the House would be more helpful if they encouraged businesses to voluntarily take steps to be compliant. Propose grants and tax incentives for businesses that make improvements by installing Braille signs, ramps, elevators, making parking accessible, renovating restrooms, recording presentations for later playback, and providing a variety of mediums for disseminating information. I understand that some buildings cannot be easily renovated to provide compliant access at every doorway, but I do find it disheartening that some companies seem to automatically assume that disabled individuals should be forced to go to the back of a building before they can enter.

Another option, as I mentioned earlier, would be to hire and pay building inspectors to review new buildings for ADA compliance before a disabled person is forced to fight for access. (As an aside, one of the first websites I found under the search “common improvements buildings can make to be ADA compliant” was an ADA.gov website, which looks like it hasn’t been updated since the Clinton administration.)

I personally do not understand why businesses would not want to be ADA compliant. Wouldn’t a business want more people to be able to enter and make a purchase? Otherwise, the business is driving customers toward their competitors, whether it’s businesses that are already compliant or if it’s online shopping delivered right to the door. The reluctance to be compliant seems to play into America’s love of eternal youth; as life expectancy continues to climb, it becomes more likely that our older populations will experience one or more disabilities. In reality, all of us will benefit from buildings and resources that are ADA compliant.

I hope that if the Senate brings its own version of H.R. 620 to the floor that there will be more outrage than what happened with H.R. 620. Certainly, there were disability activists who filled the House galleries to protest loudly and were drug out in handcuffs, but this should be a national conversation, filling the voicemails and mailboxes of elected officials. Let’s not ignore this harmful legislation the next time it comes around, and I can only hope that we’ll have a larger conversation around proposed legislation than emojis.