Readers of my blog will recall that Republican efforts in the last few years to reform the ADA not only failed to pass, but also failed to address the real problems in enforcement of Title III.¹ An effort by Democrats is now part of the “Biden Plan for Full Participation and Equality for People with Disabilities.” The “Disabled Access Credit Expansion Act,” was introduced in 2019 bill by a group of Democratic Senators. The proposed legislation will make some very modest improvements in the ADA, but like its Republican counterpart mostly serves to point out deficiencies in the ADA that require far more aggressive action on behalf of small businesses and those with disabilities who continue to suffer from a lack of access to those businesses.
We can start with the centerpiece of the Act, which increases the tax credit for ADA expenditures with an adjustment for inflatoin and expands the definition of small business to include businesses with up to $2,500,000 in gross receipts. This sounds nice, but ignores the fact that the tax credit is becoming increasingly irrelevant with the passage of time. Under Section 44 of the Internal Revenue Code the tax credit applies only to facilities first placed in service before November 5, 1990. In other words, only to buildings at least 29 years old. There are plenty of such buildings, but the tax credit is useless to the owners or tenants of buildings that were built after November 4, 1990 but don’t meet ADA standards; that is, most buildings. The guilty parties – the original owners and developers – usually no longer own the buildings and are effectively exempt from liability. After all no one, including the Department of Justice, is going to track down the original owner of a strip shopping center built 20 years ago and flipped three times before landing in the hands of the current owner. It is the current owner and tenants who will have to spend money to make the property ADA compliant because although it isn’t their fault they have barrier removal liability. These innocent subsequent owners and tenants get nothing in the way of tax credits under the existing law or the amended law. If the Senators sponsoring S 2290 wanted to help small businesses and those with disabilities they would continue the existing tax credit for pre-1990 buildings and extend the tax credit to every owner or tenant except the original owner/developer for buildings constructed after 1990. Right now the tax credit has so little application it is effectively useless as a policy tool, and it becomes more useless with every passing year.
The Act next addresses the very real problem of funding for ADA mediation. As the Act points out, money to fund mediation of ADA disputes dribbles out at the end of the tiny pittance ($4,500,000 in 2019) allocated for all alternative dispute resolution at DOJ. That is one ten thousandth of DOJ’s budget, giving a very clear picture of just how little DOJ values ADR. The Act authorizes various mediation expenditures for ADA disputes and then guarantees $1,000,000 for that purpose. That is still less than four one-hundred thousandths (.00003571 to be exact) of the 2019 DOJ budget. It also amounts to less than $100 per private ADA lawsuit brought under Title III and even less if Title II lawsuits are included. That amount is supposed to fund administration, training, and paying the mediators. This is at best a symbolic gesture, and what it symbolizes is that Congress and the DOJ really don’t care about alternative dispute resolution of ADA complaints.
The last part of the Act requires the collection of data about just who is calling the ADA Information Line. The goal is to inform efforts by DOJ to make the information line more useful, but it isn’t clear how the data will be used or even if it will be used. Beefing up the ADA Information Line isn’t going to do any good if DOJ continues its current education plan, which is essentially to throw some stuff up on the web that you won’t find unless you already know you need to look for it. One start might be, instead of collecting data, to make the line available for at least all of every business day. Right now calls are not taken before 9:30 a.m. or after 5:30 p.m. Eastern Time on Monday, Tuesday, Wednesday and Friday, with a three hour break from noon to 3 during which the line is down. On Thursdays the line is only open from 2:30 to 5:30 Eastern Time. There is no service on weekends at all. For businesses on the West Coast this means the service is only available during the working day for three and half hours a day. Even during the current pandemic my local pizza parlor answered the phone and delivered pizza for more hours than DOJ answers the Information Line.
If members of Congress from either party want to do something effective to improve access for the disabled and reduce litigation what we need is clear:
- Small businesses should be informed of their ADA obligations directly.² This could be through the IRS, which already contacts every small business once a year, through the Small Business Administration, whose programs are in direct contact with small businesses, or through the states, who are in a position to send ADA compliance information to every entity that is created. At the very least there should be an aggressive social media outreach that is specifically funded in order to overcome DOJ’s clear prejudice against eduction. DOJ’s current plan, which lets private lawyers educate businesses by suing them, is hugely wasteful as well as the slowest way imaginable to get the word out.
- As noted above, the existing tax credit should be expanded to include all but the original owners of post 1991 facilities if they meet the definition of small business, making it possible for small businesses to pay for the remediation they probably need.
- Mediation should be funded at an appropriate level; that is, a level that is sufficient to mediate every ADA dispute under Titles II and III, and early mediation should be required for every lawsuit brought under Titles II and III as a means to reduce the attorneys’ fee overhead that makes ADA litigation such an extraordinarily inefficient way to achieve accessibility.
The number of ADA physical accessibility lawsuits has remained constant or increased slightly for many years³ even though a larger and larger percentage of the public spaces covered by the ADA were built after 1991. I can drive through Dallas and its suburbs and see ADA violations from the street without going more than a few blocks, and the situation is the same in every city or town I’ve visited. We can point to the success of the ADA in shiny new malls or theaters built by the largest and most sophisticated developers, but for strip shopping centers, small restaurants, and older facilities the ADA has failed and will continue to fail until Congress decides it is worth spending more than pennies on accessibility education and remediation. The “Disabled Access Credit Expansion Act” has a good name, but like the Republican “ADA Education and Reform Act” it would fail, even if passed, to do any real good for either those with disabilities or the small businesses that serve them.
¹ See, for example, Here we go again – ADA legislation to discourage serial litigation
² I’ve pointed out before that just because the ADA is now 30 years old does not mean it is well known. Thousands of new small businesses are opened every year, and for them the world of regulation, including ADA regulation, is brand new.
³ Even disregarding the surge in ADA website lawsuits that DOJ has encouraged by refusing to publish regulations on website accessibility.