May 2000

Editor: Here we are ten years after the ADA became law, and we still don't have anything even approaching equivalent access or protection. As I've mentioned before, the ADA does not include any enforcement mechanism! The only way to force its implementation is to take a violator to court. (Can you see our legislators doing this with ... oh say ... income taxes???)

Anyway, the ADA foes in the House of Representatives are trying to further limit the already woefully inadequate ADA enforcement provisions. Here's a response from the administration that addresses some of the issues.

You might want to find out how YOUR Representative intends to vote on this bill!!

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The Honorable Charles Canady, Chairman
Subcommittee on the Constitution
Committee on the Judiciary
U.S. House of Representatives
Washington, D.C. 20515

Dear Chairman Canady:

I am writing to you to express the Administrations opposition to H.R. 3590, the ADA Notification Act. The proposed legislation would prohibit individuals from bringing lawsuits to enforce title III of the Americans with Disabilities Act (ADA)without first providing notice of the alleged violation to the defendant and then waiting 90 days for the defendant to take corrective action. We believe that this proposed legislation would work to undermine voluntary compliance with the Americans with Disabilities Act and that it would unduly burden legitimate ADA enforcement activity.

There may be attorneys who are engaged in frivolous or harassing litigation under the ADA. The appropriate mechanism for addressing allegations of such behavior lies with the ethics and disciplinary bodies of State bar associations or with the court where the litigation is pending. Rule 11 of the Federal Rules of Civil Procedure and its State equivalents prohibit the filing of frivolous lawsuits and entities sued in such actions may recover attorneys fees and costs. In such an action, a court may also sanction attorneys, parties, and law firms and may assess monetary damages or penalties. When the Department of Justice is made aware of such allegations, we will refer them to the appropriate State bar association, as we did in the Florida matter referred to us by Congressman Foley.

In 1990, President Bush and overwhelming bipartisan majorities in the Congress took strong steps to limit the need and incentive for litigation under title III of the statute. They delayed the ADA's effective date, prevented damages awards in private suits brought by persons with disabilities, and mandated a comprehensive technical assistance program to foster voluntary compliance with the Act.

The ADA itself, as crafted by Congress, included a number of safeguards to ensure that businesses and other public accommodations would have adequate notice of their obligations under the Act and ample time to take steps to bring themselves into compliance. Under section 310(a) of the Act, although the ADA was enacted on July 26, 1990, its requirements for public accommodations did not take effect for another 18 months (until January 26, 1992), six months after final regulations were issued. In addition, under section 310(b), Congress provided further protection from suits for up to a year (until January 26, 1993) for small businesses.

Congress also mandated the establishment of an unprecedented technical assistance program to educate persons who operate public accommodations and people with disabilities of their rights and responsibilities under the Act. Educating entities covered by the Act about their obligations has been a top priority for the Department of Justice. With the assistance of the Internal Revenue Service, we notified, each year for seven years, over six million businesses of their ADA responsibilities and how to obtain information on how to comply. Our toll-free ADA Information Line, established in 1994, received more than 100,000 calls in Fiscal Year 1999. In addition, we have published and disseminated 40 technical assistance documents, including approximately 500,000 copies of the ADA Guide for Small Businesses. All of our technical assistance documents are available 24 hours a day through our Fax-on-Demand system or on our ADA Home Page on the Internet, which was viewed at least six million times last year. In addition we have provided funds to several trade associations to develop and disseminate industry-specific guides for hotels and motels, grocery stores, restaurants, builders and contractors, medical professionals, child care providers, and small businesses generally. We sent a packet of 33 ADA educational documents to approximately 6,000 Chambers of Commerce and placed an ADA Information File, containing 94 ADA publications in 15,000 local public libraries.

Since 1991, the Department of Education has funded ten regional Disability and Business Technical Assistance Centers, which provide training and technical assistance to businesses in their communities.

As we approach the tenth anniversary of the ADA, many businesses have made their operations and facilities accessible to people with disabilities. In the process they have discovered the possibilities of new markets for their goods and services. We continue to extend compliance assistance to all businesses seeking to comply in good faith with the ADA.

To the extent that other businesses have adopted a policy of "foot-dragging" or "wait and see," they should not be rewarded. Certainly, they should not receive an unfair competitive advantage over businesses that have already complied in good faith with the law. Nor should Congress take steps to encourage businesses not to move toward ADA compliance until legal action is threatened. This would create disincentives for voluntary compliance and make it much harder for those who have legitimate ADA legal claims.

Thank you for the opportunity to present our views. Please do not hesitate to call upon us if we may be of additional assistance. The Office of Management and Budget has advised us that, from the perspective of the Administrations program, there is no objection to submission of this letter.

Sincerely,
Robert Raben
Assistant Attorney General