Disabled Customers Law and Legal Definition

According to 2000 Census data published by the U.S. Census Bureau (available in tabular format on http://www.census.gov/hhes/www/disability/disabstat2k/table1.html), in that year, by actual total tally of the population, 49.7 million people (19.3 percent of the population aged 5 or over) had some kind of disability. A further subdivision showed that 5.8 percent of those aged 5 to 15, 18.6 percent of those 16 through 64, and 41.9 percent of those aged 65 and over had some disability. The census provided four distinct categories of disability. Those with physical disabilities were 8.2 percent of the population aged 5 or older (21.2 million physically handicapped); mentally disabled were 4.8 percent of population (12.4 million), those with sensory handicaps were 3.6 percent (9.3 million), and those unable to provide self-care 2.6 percent of the total population (6.8 million actual cases).

In 1990 the passage of the Americans with Disabilities Act (ADA) aimed to provide better access for this segment of the population to employment and services. The U.S. Department of Justice, the principal administrator of this law, sums up the aims and intentions of the ADA in one of its Questions and Answers pages on its home page as follows: Barriers to employment, transportation, public accommodations, public services, and telecommunications have imposed staggering economic and social costs on American society and have undermined our well-intentioned efforts to educate, rehabilitate, and employ individuals with disabilities. By breaking down these barriers, the Americans with Disabilities Act (ADA) will enable society to benefit from the skills and talents of individuals with disabilities, will allow us all to gain from their increased purchasing power and ability to use it, and will lead to fuller, more productive lives for all Americans."

The portion of the Americans with Disabilities Act that most directly relates to disabled customers is Title III dealing with public accommodations. Title III requires that private businesses open to the public—including retail establishments, restaurants, and hotels and motels—give individuals with disabilities the same access to their goods and services that non-disabled customers enjoy. This section of the ADA also required that all future construction of commercial facilities, including office buildings, factories, and warehouses, as well as places of public accommodation, be constructed so that the building is accessible to individuals with disabilities.

BUSINESS OBLIGATIONS UNDER ADA

ADA places Title III requirements on businesses of all sizes. These, principally, are 1) to modify policies and practices that discriminate against the disabled, 2) to comply with access design standards when modifying existing or building new structures, 3) to remove existing barriers in existing structures where easily achievable, and 4) to provide auxiliary aids and service to ensure effective communication with those who have hearing, sight, or speech impairments.

Modified Policies

Examples of a policies that might require change is to accommodate guide dogs in stores that would not otherwise permit pets or always to keep open checkout counters capable of handling wheelchairs. The law specifically mentions specialist in diseases who in the past, evidently, refused to treat disabled persons with those diseases; now such selectivity is prohibited as a policy.

Access Standards

Many people still believe that the central issue of ADA is access to buildings. That is certain an important element of the law, but not the only one. Since 1992 building modification has been promulgated as the ADA Standards for Accessible Design, a 92 page document which clearly describes accommodations to newly built or altered buildings. The first 58 pages deal in detail with external facilities such as parking accommodations and internal access and accommodation matters applicable to any facilities, such a walkways, support rails, access to shelving, toilet facilities, communications devices, and many more areas of contact between people and structural facets; the remaining pages specify requirements unique to restaurants and cafeterias, medical care facilities, business and mercantile structures, libraries, accessible transient lodgings, and transportation facilities.

Removal of Barriers

A public accommodation is required to remove architectural barriers in existing facilities, including communication barriers that are structural in nature, where the removal is readily achievable, i.e., it can be accomplishable easily and able to be carried out without much difficulty or expense. The law lists 20 examples, as follows:

  1. Installing ramps;
  2. Making curb cuts in sidewalks and entrances;
  3. Repositioning shelves;
  4. Rearranging tables, chairs, vending machines, display racks, and other furniture;
  5. Repositioning telephones;
  6. Adding raised markings on elevator control buttons;
  7. Installing flashing alarm lights;
  8. Widening doors;
  9. Installing offset hinges to widen doorways;
  10. Eliminating a turnstile or providing an alternative accessible path;
  11. Installing accessible door hardware;
  12. Installing grab bars in toilet stalls;
  13. Rearranging toilet partitions to increase maneuvering space;
  14. Insulating lavatory pipes under sinks to prevent burns;
  15. Installing a raised toilet seat;
  16. Installing a full-length bathroom mirror;
  17. Repositioning the paper towel dispenser in a bathroom;
  18. Creating designated accessible parking spaces;
  19. Installing an accessible paper cup dispenser at an existing inaccessible water fountain;
  20. Removing high pile, low density carpeting; or
  21. Installing vehicle hand controls.

Where such accommodations are difficult to achieve, work-arounds are permissible. Examples are to provide help for reaching shelves or, in multi-screen theaters where access to all screens is not possible to provide, the movie theater can meet the law by rotating the films shown so that each appears on one of the screens accessible to wheelchair-bound customers.

Auxiliary Aids and Services

Auxiliary aids and services are intended to give customers or clients access to commercial and other services despite their disabilities. An example is to provide instructions in Braille and large print, telecommunications devices for the deaf, and other means to help communications. The service provider may be exempted from such requirements if he or she can prove that doing so would fundamentally alter the nature of the enterprise or would impose a significantly large expense.

Litigious Beginnings

Businesses have perhaps been slow in fully absorbing the requirements of ADA, managements, perhaps, being too focused on the construction issues imposed by access standards—which, after all, may be left to the next major reconstruction project. Slow response, on the other hand, has gradually resulted in the launch of many large class-action law suits brought by or on behalf of disabled groups. As the lists above show, faults can be found in many hidden places. In some states, like California, where additional state legislation has made it more profitable to sue—because California law permits the collection of damages whereas ADA only allows for attorney's fees—lawsuits have reached quite small business as well and have damaged them severely enough to put some out of business. Lawfirms specializing in ADA cases have formed alliances with disabled groups. In the mid-2000s hundreds of ADA suits were being filed per month.

For these reasons, the small business owner is well advised to make the necessary effort to examine his or her compliance with ADA now. Gathering information on compliance is relatively easy, with the U.S. Department of Justice ADA Home Page (provided below) being a trouble-free point of entry. ADA is the law of the land. Its requirements under Title III are sometimes difficult but certainly achievable. They ultimately relate to making goods on display accessible to all, be they disabled or not. Making them so must, ultimately, be good for business.

SEE ALSO Americans with Disabilities Act

BIBLIOGRAPHY

"Advocates File ADA Suits Against Local Hotels, Malls." Crain's Detroit Business. 28 June 2004.

"Black Angus Chain Hit with ADA Lawsuit in Utah." Nation's Restaurant News. 20 October 2003.

"Bradley Launches Next Generation Lavatory Systems." Contract. June 2005.

Jennings, Lisa. "California 'Sheriff' Cites ADA, State Law in Rash of Lawsuits: Wheelchair-bound activist slaps hundreds of operators with complaints." Nation's Restaurant News. 27 September 2004.

"Small Stores Tackle Big Challenges." Chain Store Age. May 2001.

Thornton, Jeremy. "Disabled Golfers File Suit Against Marriott: Joins with federal move to force ADA rules on golf courses, hotels." Meeting News. 21 November 2005.

"Ultimate accessibility." Building and Construction. July 2005.

U.S. Department of Justice. 28 CFR Part 36. ADA Standards for Accessible Design. 1 July 1994. Available from http://www.usdoj.gov/crt/ada/adastd94.pdf. Retrieved on 17 February 2006.

U.S. Department of Justice. Americans with Disabilities Act ADA Home Page. Accessible from http://www.usdoj.gov/crt/ada/adahom1.htm. Retrieved on 19 February 2006.

Wilson, Marianne. "ADA Myths Remain: There is no such thing as a grandfather clause." Chain Store Age. January 2006.

Wilson, Marianne. "Retailers Hit Hard by ADA." Chain Store Age. August 2003.

                                            Darnay, ECDI