Statement for the Record - House Judiciary Subcommittee on the Constitution Hearing on 'ACCESS (ADA Compliance for Customer Entry to Stores and Services) Act'

Statement for the Record - House Judiciary Subcommittee on the Constitution Hearing on "ACCESS (ADA Compliance for Customer Entry to Stores and Services) Act"

Submitted to the House Judiciary Subcommittee on the Constitution for a hearing on the "ACCESS (ADA Compliance for Customer Entry to Stores and Services) Act," June 27, 2012

FOR THE RECORD

POLICY STATEMENT OF THE NATIONAL COUNCIL ON DISABILITY
REGARDING THE ACCESS ACT OF 2011

The National Council on Disability (NCD) is an independent federal agency that makes recommendations to the President and Congress on disability policy. In this role, NCD is responsible for advising on the implementation, impact and effectiveness of the Americans with Disabilities Act. NCD first proposed the concept of the ADA in 1986 during the Reagan Administration, and in 1990 it was signed into law by President George H.W. Bush. Congress relied on and acknowledged the influence of NCD, its reports, and its testimony throughout the legislative process. Since passage of the ADA, NCD has remained actively involved in monitoring its impact and advising federal entities on policy issues.

NCD is deeply concerned about the proposed ADA Access Act of 2011. The Act proposes to amend the ADA to require that an individual alleging a business is inaccessible provide written notice to the business about the specific ADA violation before bringing suit.

Title III of the ADA was intended to balance the interests of small businesses along with the accessibility concerns of people with disabilities. It is a myth that the ADA's requirements are too hard on small businesses. The legislative history of the ADA is rife with concern about the burden on small businesses and as a result, Title III does not require any action with respect to existing buildings that would cause an undue burden or that is not readily achievable. The approach of the ADA was not to exempt small businesses from the requirements of the bill, but rather to tailor the requirements of the Act to take into account the needs and resources of small businesses- to require what is reasonable and not to impose obligations that are unrealistic or debilitating to businesses. Each of the major sections and requirements of the ADA takes into account the fact that some businesses are very small local enterprises that may have very limited resources. The following are some of the ways in which the provisions of the ADA provide great deference for the characteristics and needs of small businesses:

• the exemption for small employers;
• the undue hardship limitation;
• the readily achievable limit on barrier removal in existing public accommodations;
• the undue burden limitation regarding auxiliary aids and services; and
• the elevator exception for small buildings, among others.

NCD addresses this in its policy brief series, Righting the ADA, found at

/publications/2003/Feb202003.

In addition, businesses have had almost a quarter of a century to comply with the provisions of Title III. DOJ has published and distributed multiple technical assistance documents- all of which are available 24 hours a day through DOJ's home page on the Internet. The National Institute on Disability and Rehabilitation Research established regional centers on the ADA, the Disability and Business Technical Assistance Centers (DBTACs), to provide technical assistance to businesses. Clearly, businesses have been put on notice of this 22 year-old landmark law.

An amendment to the ADA such as the proposed ADA Access Act of 2011, is superfluous. While at first impression the proposed amendment's notice requirement does not appear to be an imposing burden for an aggrieved individual to correct an ADA violation, this provision will have the drastic effect of creating a nationwide exemption to the ADA. It encourages businesses to do nothing until they get a letter of notification- no other civil rights law has a notice provision like this.

NCD recommends that Congress follow its own careful considerations when enacting the ADA- and not pass this unnecessary amendment.