Prioritizing rights —Challenging the case for delayed ADA compliance

The following opinion piece by disability activist Michele Mashburn was published in San Jose Spotlight.

In a recent op-ed by San Jose Downtown Association CEO Alex Stettinski, he expressed concerns about the impact of Americans with Disabilities Act-related lawsuits on small businesses.

He advocated for a “time to fix” period, as proposed in Senate Bill 585. Recognizing the challenges faced by small businesses, it is vital to check the wisdom of extending Americans with Disabilities Act (ADA) compliance timelines. This is especially important given the legislation’s extensive history.

Since its start in 1990, the ADA has aimed to eradicate discrimination against disabled people. Significant advancements, such as legal protections and improvements in architectural accessibility, have improved the lives of many disabled people. Progress in employment opportunities and shifts in societal attitudes have also played a crucial role in this positive trajectory.

However, it is important to acknowledge that challenges persist, and disparities in equal opportunities for people with disabilities still exist. These challenges include issues related to enforcement, economic disparities, attitudinal barriers, digital accessibility, transportation difficulties and compounded discrimination arising due to intersectionality.

Proposals like SB 585 suggest extended compliance periods. This signals a wavering commitment to genuine inclusivity. We should focus on preserving the principles of an inclusive society rather than backing bills that would undermine the ADA.

While I have a natural inclination to support small businesses and local enterprises, stemming from my parents’ ownership of two small businesses, it is crucial to recognize the importance of preserving accessibility standards.

On a personal level, I find litigation to be an exhausting process, so I prefer using education to address accessibility barriers, resorting to litigation only as a last resort. However, as a Santa Clara County resident with a disability, I often question whether education alone will be sufficient to tackle the barriers I regularly encounter that block equal opportunity and complicate my daily life. These challenges include accessing restaurants, stores, venues, medical services and parking. Unfortunately, internal complaints and appeals for accessibility often lead to unwelcoming environments and make little progress toward resolving the issues.

Many barriers can be effectively addressed through early planning and the active participation of disabled individuals in the decision-making process. However, the CEO of the San Jose Downtown Association appears to prioritize the protection of small businesses, leading to challenges for people with disabilities and their families in accessing essential services and opportunities.

As noted by the World Health Organization, businesses that are inaccessible contribute to social exclusion, impeding individuals from fully engaging in community life and eroding community diversity and vibrancy. The inclusion of people with disabilities, on the other hand, has the potential to enrich community life.

The spending power of the disability community in the United States is substantial, with the disposable income estimated at $490 billion, emphasizing its economic importance. Nevertheless, proposals for extended timelines in legislation can weaken the effectiveness of accessibility laws, placing an unjust burden on individuals with disabilities to uphold their civil rights.

Disability Rights California has highlighted the effectiveness of existing policy reforms, suggesting that alternative measures, such as incentives, increased education, inspection programs and tax credits, could promote compliance without compromising the rights of disabled individuals.

Stettinski’s advocacy for a “time to fix” period may perpetuate barriers for disabled individuals, and relegate them to second-class citizenship. With over 33 years since the ADA’s start and more than 40 years since California’s accessibility laws, businesses in metropolitan areas like San Jose have had enough time to address accessibility issues. Further extending compliance timelines seems to prioritize business convenience over the rights of individuals with disabilities.

While addressing opportunistic legal practices is crucial, it should not detract from the urgency of ADA compliance. The primary focus should be on fostering an environment where businesses genuinely embrace inclusivity as a core value, rather than merely responding to legal pressures.

Unfortunately, bills like SB 585 pose significant obstacles for disabled individuals seeking to rectify ADA violations. The responsibility for enforcement already falls on disabled individuals, and this burden is exacerbated by additional notice and cure requirements.

Initiatives like Certified Access Specialist (CASp) property inspections and the new Disability Access Improvement Grant Program in San Jose are promising. The CASp program offers qualified defendant status and reduced statutory damages, while the grant program aids businesses in achieving compliance.

In conclusion, addressing non-compliance root causes and providing businesses with the necessary resources and support to expedite the process is essential. The focus must be on proactive measures, including educational programs, financial incentives and community engagement to ensure that businesses can swiftly improve accessibility without prolonged grace periods.

Upholding the ADA’s purpose of an inclusive society requires swift action, aligning with its fundamental principles and California access laws. Supporting initiatives that bridge accessibility and business interests is crucial for a truly inclusive future.

Michele Mashburn is a San Jose resident, disability advocate and equity and inclusion consultant/trainer. She employs a human rights framework to intersectional equity, emphasizing full inclusion and expanded opportunities for people with disabilities.

Leave a Reply