accessible icon with question markThe ADA played a typically minor role in the recent election. Democrats made it clear they were for the disabled but did not propose specific new programs. Republicans barely mentioned the disabled except for a brief controversy involving Trump mocking a disabled reporter. With disability rights playing such a minor role in Republican politics one might think that Trump’s election means no change, but in fact a Trump presidency may lead to a significant narrowing of the ADA’s application and  reduced federal enforcement action.

Congress is considering several bills intended to slow or stop abusive lawsuits under Title III of the ADA. Similar efforts have failed several times in the past, but with Republicans in control of both houses of congress as well as the presidency there is some prospect this legislation will finally be passed. HR 3765 in particular was reported out of committee this summer and could actually reach the floor of the House. Predict.gov gave it only a 2% chance of success, but that was before the election. Now it seems at least possible the ADA will be amended to require notice and an opportunity to cure, a requirement long sought by business interests.

We may also see important changes in enforcement and rule making. The Civil Rights division of the Department of Justice has long been a law unto itself with respect to both regulation and enforcement, ignoring decisions from the courts that it happened to disagree with, and using the power of unlimited resources to expand the ADA’s reach beyond its actual language. For example, the 9th Circuit has rejected DOJ’s claim that every business web site is covered by the ADA, but DOJ has continued to insist that it does apply. This September a federal district court in Florida took the even more dramatic step of holding that the DOJ has no enforcement power at all with respect to ADA Title II cases. C.V. v Dudek, 2016 WL 5220059 (S.D. Fla., Sept. 20, 2016). DOJ is ignoring this decision as well and continues enforcement actions against municipalities. A Trump directed Department of Justice might decide to follow, rather than defy, the courts in their interpretation of the ADA. This could lead, in turn, to dramatically different regulations concerning the application of the ADA to the internet.

The same thing is possible with the EEOC, which has a long history of aggressive advocacy of disability rights under Title I. Left to their own devices, the staffs of both the Department of Justice and the EEOC are likely to continue with business as usual, but changes at the top might well lead to changes at the bottom as well.

Change at the Supreme Court may also create real changes in the law. Texas Department of Housing & Community Affairs v. The Inclusive Communities Project, 135 S.Ct. 507 (2015) resulted almost immediately in a series of HUD announcements concerning disparate impact claims under the FHA, all of which would apply in the ADA context as well. The decision was opposed by the 4 more conservative justices.  Justice Scalia was in the minority, but if Trump can alter the makeup of the Court beyond replacing Scalia it is possible that we will see a much narrower reading of every civil rights law, including the ADA.

The ADA is not likely to leap to prominence in a Trump presidency, but his presence in the White House may create the conditions needed for legislative and regulatory action that narrows the application and enforcement of the law.

 


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