Is it really that big a deal if a disabled parking space is a couple of inches shorter than the Americans with Disabilities Act (ADA) regulations say it should be?
And is it right that a business can be sued for an ADA violation if they haven’t first been given a chance to correct the problem?
I would say that the answer to both of these questions is a resounding “Yes.” The difference of a couple of inches could determine whether or not a wheelchair can be maneuvered in and out of a van. And if someone was unable to go into an establishment because it was not accessible, why should that person then have the burden of “educating” the owner about the law?
The television show “60 Minutes” addressed these issues last December. In a segment called, “What is a Drive-By Lawsuit?” Anderson Cooper interviewed some business owners who had no idea they were not in compliance until they were hit with a lawsuit. Mr. Cooper also spoke to an attorney who had filed approximately 2000 of these suits, as well as a couple of individuals with disabilities who said they had been recruited by attorneys to visit various establishments and report if they were ADA-compliant.
As an attorney myself, I just have to shake my head and wonder about these tactics. I am also concerned that this tends to camouflage the real problem: Business owners – not the people with disabilities – were made to look like the victims. It also made me think about a bill that is currently before Congress, which would not allow these kinds of public accommodation lawsuits unless the business first received written notice of the problem and given 6 months to correct it. That time period could then be extended if the business could demonstrate “substantial progress” towards compliance (see my post of September 7, 2017).
Something else on that program also confused me: The owners (and frankly, Mr. Cooper himself) seemed somewhat outraged that someone could sue a business for lack of accessibility when the person had never actually entered the premises and/or tried to use the facilities. The main example was that of a hotel without a “pool lift,” when no one with a disability had ever asked to use one.
There is first the obvious point – if a pool has a pool lift, it is usually quite visible and it is natural that a person with a disability would refrain from inquiring about one if they don’t see it. Second, it made me think of a recent instance where I attempted to enter a building, only to confront a big flight of stairs at the doorway. After determining that there was no other entrance, I grabbed the railing and slowly heaved myself and my walker up the stairs. This was quite dangerous and really pretty stupid. But if I had chosen to stay safe and leave, does that mean I should lose my right to sue because I never was “there?”
And this begs the larger question: Why does there seem to be a growing trend of thinking that people with disabilities should not have the same rights as other victims of illegalities?
Mr. Cooper did mention that a business does not have to comply with these standards unless compliance is “readily achievable.” Although that issue seemed to get lost in the rest of the drama, it is a point well worth repeating: Many accommodations do not need to be made unless they are readily achievable, which is defined as “without much difficulty or expense.” For many other accommodations, they don’t have to be made if it would cause the establishment an “undue burden” or create a “fundamental alteration.”
And although Mr. Cooper griped about the extensive and detailed regulations governing accessibility in public accommodations, he neglected to mention that these standards only apply when a business is either building a new structure or altering portions of existing ones. Studies have shown that at that stage, the cost between building an “accessible” and “non-accessible” facility is negligible. And when that is weighed against the benefits of giving access to people that have traditionally been denied it, the gains are incalculable.
For more information, see: Title III Highlights