May 18, 2000

Mr. Chairman and members of the Subcommittee:

Good Morning, and thank you for the opportunity to testify on H.R. 3590, the ADA Notification Act. My name is Christine Griffin and I am a woman with a disability, a veteran of the United States Army, an attorney and Executive Director of the Disability Law Center, and a former Special Assistant to Vice Chairman Igasaki of the Equal Employment Opportunity Commission, which has responsibility for enforcing the employment provisions of the ADA. I am also an active member of the Paralyzed Veterans of America. The Law Center is the designated protection and advocacy agency in Massachusetts and a member of the National Association of Protection and Advocacy Systems.

The mission of the Law Center is to provide information, training, technical assistance and legal representation to promote the independence of people with disabilities throughout Massachusetts. The Law Center, like all protection and advocacy agencies, is federally mandated to provide legal representation to persons with disabilities under all Federal, state and local laws, including the ADA, and to pursue all appropriate remedies to protect their statutory and constitutional rights. We receive more than 5000 requests for assistance each year. Many of these requests come from people with disabilities who have been denied access to a public accommodation.

It is hard to believe but people with disabilities are still experiencing discrimination in public accommodations 10 years after the passage of the Americans With Disabilities Act. That means owners of public accommodations have had 10 years of notice and it makes no sense that they need an additional 90 days before an individual with a disability can protect her legal rights in court.

Let me give the Subcommittee some real life examples of issues that have come to us under Title III and raise the question why a notification requirement would make sense in these situations:

Why should a person who is blind and uses a guide dog for mobility assistance have to wait 90 days after they’ve been denied access to a restaurant?

Why should a person who uses a wheelchair who has been denied access to a restaurant that was recently remodeled but failed to comply with state and federal access laws have to wait 90 days after their civil rights have been violated?

Why should a person who has mental retardation wait 90 days to invoke a court’s jurisdiction after being told by a restaurant owner that he won’t serve him because he doesn’t think the other customers want to look at him?

Why should a man with cerebral palsy have to wait 90 days after being refused service at a liquor store and escorted out of the store by local police who call him retarded?

Why should a young man who uses a wheelchair have to wait 90 days to file a lawsuit after a taxi driver tells him he does not pick up people who are "crippled" in his cab because he doesn’t want to help them.

Why should the parents of a 4 year child with downs syndrome have to wait 90 days to file a lawsuit against an after school music program that denied the child’s access because of the director’s discomfort?

Taking these real life examples, how would waiting a mandatory 90 days in any of these examples make any of these public accommodations comply with the law? The fact is it wouldn’t. And it wouldn’t take a "fistful of dollars" for any of these Title III entities to comply with the law. Acts of egregious discrimination still happen every day and Congress was aware of that fact10 years ago. Congress heard examples like those that I cited when the ADA was passed without a waiting period . And I am here to tell you that these issues still persist 10 years later.

Those of us at the Law Center and at all the protection and advocacy agencies throughout the country talk to people on a daily basis whose civil rights have been violated by thousands of public accommodations. There is significant non-compliance and the reality is that if our agencies don’t take these cases there are very few private attorneys who will.

A critical underpinning of the ADA is the right to private enforcement. Whether this landmark civil rights law is to be ultimately enforced rests upon the ability of individuals with disabilities to seek and obtain effective judicial relief. The reality is that even without this notice provision, it is already difficult to find a private attorney that will accept a Title III discrimination case.

When our capacity prevents us from taking a public accommodations case, we have a difficult time referring this type of case to a private attorney. In response to that problem, we initiated a mediation program that is free to the complainant (the individual with a disability) and free to the business owner. We first ask the individual calling with the complaint if he or she is willing to mediate the complaint. In most cases, the individual says yes. They just want access. We then contact the respondent (the owner or manager of the public accommodation ), and in most cases the business owner declines to participate. They prefer to hedge their bet and wait to see if someone files the lawsuit.

If this legislation, which would require a 90 day waiting period, is in response to lawyers who prey on people with disabilities to make money as Mr. Eastwood has said, why make public policy based on the conduct of a few bad actors. Why would Congress make policy that in effect penalizes those business that obeyed the law and have already complied?

Passage of this notification requirement would clearly remove the primary incentive for businesses to take the initiative to ensure access to their goods and services. This is because, given that damages are not available under Title III of the ADA, the primary economic motivation to voluntarily comply with the law is the prospect of paying attorneys fees to plaintiff’s counsel if a Title III violation is proven. With the passage of the notification requirement, business owners will simply take their chances that there never will be a complaint raised against them, and will flout the law’s accessibility requirements.

The notification provision also would remove an important tool to assure compliance – a speedy court order for preliminary injunction, which is often necessary to prevent immediate harm, where no other remedy would be adequate. Attorneys must preserve the option of seeking this remedy for their clients, but the notification requirement would effectively deny them this key protection. Also, in my experience, most attorneys already provide notice to violators of the ADA and an opportunity to attain compliance voluntarily. But there are many circumstances where it is in the client’s best interests to dispense with a protracted notification period – in order to secure justice. This strategic option should not be denied to counsel when necessary to protect the rights of vulnerable people with disabilities.

If Congress wishes to make public policy that encourages compliance, why not instead increase the tax deductions and credits available to business owners that provide access? Why not instead

increase resources available to the Department of Justice, other federal agencies and the private sector to provide intensive technical assistance to small businesses on the requirements of Title III? Most protection and advocacy agencies, including my own, provide an extensive amount of training and technical assistance to the disability community as well as the business community as an effective means of redressing access rights and obligations. Investing resources in community education would be a more productive approach than establishing a new barrier that would limit an individual’s ability to privately enforce the law. Reiterating Congressional commitment to equal rights for people with disabilities will move us closer to Congress’ stated goal nearly 10 years ago of having the ADA enable "the United States to take a long-delayed but very necessary step to welcome individuals with disabilities fully into the mainstream of American society."