A Stumbling Block

So, there’s a joke that’s funny to rabbis and cantors (and almost no one else!) that their favorite day is Rosh Chodesh (the first day of the new month) Cheshvan, the first day of the second month of the Jewish calendar year. Why? Because Cheshvan has no holidays–finally, a break!

Rosh Chodesh Cheshvan is on Saturday. 🙂 Not that I haven’t been or won’t be busy. Just that, you know, it’s a little bit lighter of a schedule in theory.

More seriously: presently the US social and political system is in a state of ongoing chaos, and it’s definitely the case that there are so many serious issues to address in an urgent manner that you can experience decision fatigue just trying to figure out where to place your efforts, or you can spend your time jumping from issue to issue and gaining little traction. I hate to be the bearer of bad news, but I have another issue for you to be aware of.

Let’s talk about stumbling blocks.

Leviticus 19:14 conveys as a law for Israelites, “and before the blind (Heb. v’lifnei ivver) do not put a stumbling block.” Thus, in Jewish tradition, this principle is called lifnei ivver. The rabbinic tradition takes this principle and expands it beyond its literal meaning to include cases of deception based on bad information. Rashi explains lifnei ivver to mean that one should not put a stumbling block “before the person who is blind with respect to the [particular] matter: do not give him improper advice. Do not say, sell me your land and take for yourself an ass: for you are skirting around him and taking it [the field] from him.” In a sense, then, the rabbinic tradition regarded the plain sense of lifnei ivver as being completely obvious. Of course you don’t put a stumbling block before someone who is actually blind; the Torah doesn’t bother with the completely obvious stuff. It must, they thought, mean something deeper.

And now, let’s talk about the Americans with Disabilities Act of 1990. Enacted during the administration of President George H.W. Bush, the law placed affirmative obligations upon (among others) places of public accommodation to ensure that their premises and services were accessible to individuals with various forms of disability. This was to be done by means of “reasonable accommodation.” Heaven and earth need not be moved, but reasonable steps must be taken to ensure access.

How does one make sure this happens, since the federal government wasn’t going to send out inspectors to measure ramps, assess sound levels, test gas pumps, etc.? One of the enforcement mechanisms in the ADA permits lawsuits by individuals affected by the failure to provide reasonable accommodation. The fact of inaccessibility, together with proof that there were no reasonable accommodations made, is enough to succeed in many of these cases. The ADA permits the payment of attorney fees for the plaintiff who succeeds in such cases, but otherwise no damages are assessed; instead, the business is required by the court to remedy the situation.

But that was 1990, and this is 2017.

This year, Representative Poe (TX), with several others, has introduced H.R. 620, the ADA Education and Reform Act of 2017. (See bill details here.) I’ve read it so that you don’t have to. It would amend the ADA to bar a lawsuit unless notice has been provided and a fixed period of time (60 days after notice for a reply, plus another 60 days for implementation of an accommodation) has passed without compliance by the possible defendant.

Understand precisely what this does. This kills an enforcement mechanism of the 1990 law.

“Why?,” one might ask. “After all, it’s giving the business a chance to fix the problem.”

Here is what the notice must be: “written notice specific enough to allow such owner or operator to identify the barrier.” And from the date of the notice, the owner or operator can’t be sued unless they “fail to provide [within 60 days of the notice] … a written description outlining improvements that will be made to remove the barrier,” or “fail[] to remove the barrier or to make substantial progress in removing the barrier” within 120 days after the notice.

Questions to ask:

  • How specific is specific enough? What does “identify” mean? What does “barrier” mean? (In case you’re wondering, the law doesn’t actually define “barrier,” and ordinarily uses “barrier” in conjunction with physical or institutional features of premises.)
  • What kind of description outlines improvements? Is a written statement of, “Yeah, we’ll take care of that” enough? What does “outlining” mean?
  • What is “substantial progress”? And if you start, do you have to finish? Or can you point to your progress and stop there?

So, let’s sum up: your average person is not going to be able to meet a lot of these requirements. They need a lawyer to make that happen in many cases.

Lawyers usually want to get paid so they and their families can eat. Under the ADA, the lawyer gets paid in a successful suit or – only if the client has money – because the client pays out of pocket.

And now, here are hundreds, and maybe thousands of dollars of legal work that has to be done on spec, because lots of persons with disabilities don’t have money to pay a lawyer.

So, we have 1) delays, 2) inability to hire lawyers, and 3) a law drafted so poorly that maybe nothing ever really has to be fixed.

In any case, I think Sen. Tammy Duckworth has it right:

This offensive legislation would segregate the disability community, making it the only protected class under civil rights law that must rely on “education” — rather than strong enforcement — to guarantee access to public spaces.

Take the time to read her op-ed, as she explains how unnoticeable differences become stumbling blocks that she didn’t recognize and never would have – until she herself became a person with a disability.

Justice delayed is justice denied, and legislators who no doubt parade their adherence to “biblical principles” are sponsors of this bill. Rep. Poe, the principal sponsor, “is a student of the Bible, and loves the Old Testament.”

Leviticus 19:14 is in “the Old Testament.” Perhaps Rep. Poe forgot? Or perhaps Rep. Poe and others care more about business’s desires than individual persons’ needs.

What can you do? You can contact your representatives and the members of the House Judiciary Committee and, if you oppose this bill, let them know.

And there you go: no break for Cheshvan.

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