Hunton Employment & Labor Perspectives

On February 15, 2018, by a vote of 225 to 192, the House of Representatives passed the ADA Education and Reform Act (HR 620).  Title III of the Americans with Disabilities Act was enacted to ensure access for persons with disabilities to public accommodations.  Too often however, serial litigants have abused Title III to shake down businesses for quick settlements over minor, technical violations without actually seeking to improve access.  By amending the ADA to include a notice and cure provision, proponents of HR 620 say this bill will curb predatory public accommodations lawsuits brought by serial plaintiffs and their lawyers against businesses.

If passed, HR 620 would amend the ADA to provide a notice and cure period.  Under the bill, those wishing to sue businesses in federal court over an ADA public accommodations violation must first deliver a written notice to that business detailing the illegal barrier to access and then give that business 60 days to come up with a plan to address the complaints and an additional 60 days to take action.  The written notice must “specify in detail the circumstances under which an individual was actually denied access,” and must specify: (1) the address of property, (2) specific sections of the ADA alleged to have been violated, (3) whether a request for assistance in removing an architectural barrier to access was made, and (4) whether the barrier to access was a permanent or temporary barrier.  The plaintiff can then file a lawsuit only if the business does not respond within 60 days with a description of the improvements that it will make to remove the barrier, or if the business responds as required, but fails to remove the barrier or make “substantial progress” toward removing the barrier within 120 days after the notice first was issued.

HR 620 also directs the U.S. Department of Justice (DOJ) to develop a program to educate state and local governments and property owners on effective and efficient strategies for promoting access to public accommodations. It also requires the Judicial Conference of the United States to develop a model program to promote the use of alternative dispute resolution mechanisms, including a stay of discovery during mediation, to resolve Title III claims.  Some courts, such as the Northern District of California, already require a stay of discovery for these types of cases to facilitate early settlement.

The bill now moves to a vote in the Senate.  We will track and provide updates as the legislation progresses.