Experts say law
has changed way companies interact with customers and employees
By Robyn Davis Sekula
Correspondent
December 16, 2005
Fifteen years ago,
the Americans with Disabilities Act was signed into law, changing the way America
does business.
The law held great
promise for the disabled. Customers who wanted access to businesses no longer
would be denied. Disabled people who wanted to work would be able to find jobs.
But the burden of
implementing this sweeping law fell on businesses, which often haven’t been
sure what obligations they had under the law.
Are automatic doors
required on all shops? Is an airline forced to hire a blind pilot?
The courts, ADA
experts said, have addressed some of those thorny problems presented by the
law, which is vague.
Attorney Tom
Williams, a member of Ogden Newell & Welch PLLC, said businesses still are
apprehensive about the law, 15 years later.
The law doesn’t
define who is disabled and who is not, beyond defining disabled as those whose
major life activities are impaired as a result of their disability.
The law also allows
broad discretion about the type of accommodations that must be provided.
For example, the ADA
requires that businesses provide the appropriate auxiliary aids and services,
such as qualified interpreters, where necessary, to assure effective
communication with its customers with disabilities.
The question of
whether an accommodation is necessary to ensure effective communication will
depend on each situation. While a retail store may be able to communicate
effectively with its customers by using a pen and paper, a business that
engages in more complex transactions with its customers may have to use a sign
language interpreter to ensure effective communication.
Mary Ellen Harned is
executive director of GuardiaCare, a nonprofit organization that serves seniors
and their families. But for 12 years, she was executive director of the Access
Center Partnership, a clearinghouse for information on how to make accommodations
under the ADA. The center closed earlier this year.
Harned said case law
on ADA indicates, for the most part, that businesses that at least try to
conform to the law are seen more sympathetically by the courts.
“It's a complex law,
and the courts have been steadily interpreting it over the last 15 years,”
Harned said. “In my opinion, if businesses make a good-faith effort to try to
work something out, usually it can be done without a need for enforcement or a
lawsuit.”
The law at work
Accommodations under
the law run the gamut from simply raising a desk on blocks for someone in a
wheelchair to providing a phone amplifier for someone who is hearing impaired.
For blind University
of Louisville professor, Dr. Okbazghi Yohannes, the accommodations have
included arranging to have all of his classes in one building, buying software
that reads material aloud, providing an assistant and giving him a machine that
types in Braille.
Yohannes is a
professor of political science, and he lectures from a podium, guide dog asleep
at his feet. He calls on students to participate by name. Students seem active
and engaged.
Yohannes said
university administrators have made his life as a professor comfortable. As to
whether the university is making adjustments because they are required to by
law, Yohannes said it's difficult to say.
“From the beginning,
they were so nice,” Yohannes said. “I can't tell if they were doing things out
of fairness to me or if they were conscious of the fact that there is a law on
their backs. I think it is the former.”
Significant cases
Because the
Americans with Disabilities Act didn't define who exactly is disabled, that’s
been left to the courts, and the courts have narrowed that definition, said
Laura Rothstein, professor of law at the University of Louisville Brandeis
School of Law. Rothstein has studied ADA extensively.
The original law
lists some things that aren’t covered by ADA, such as pregnancy, people going
through a gender change, pyromaniacs, temporary conditions, kleptomaniacs and
compulsive gamblers, Rothstein said.
The courts have
narrowed the definition further to exclude people who are able to mitigate
their disability, Rothstein said, such as a person with poor vision who
successfully wears glasses or contacts. That person would not be eligible for
coverage under ADA.
From a customer
perspective, Rothstein said, significant lawsuits under ADA have included a
customer of a San Francisco department store who sued because aisles were too
narrow for navigating a wheelchair.
Also, a fast-food
restaurant customer in a wheelchair sued because the lines for someone to wait
to order food were narrow and serpentine shaped, making it impossible to get a
wheelchair through.
Because the law is
vague, it has flexibility, Williams said, both from an employment and a
customer perspective.
In one case that
likely will have applications across the country, the U.S. Supreme Court ruled
in 2004 that disabled people can sue courthouses when ramps or elevators are
not provided to allow the disabled into courtrooms.
The ruling rose out
of a lawsuit in Tennessee, where two people in wheelchairs could not access
their courthouses.
ADA law also
recognizes that a disability does sometimes prohibit a person from doing a
particular job.
For example, doctors
and pilots, for the most part, can’t be blind, because they need to be able to
see to do their work, Williams said. The law requires that the disabled person
be able to perform the essential functions of the job, Williams said.
Where Kentucky stands
There is some
disagreement about how much the ADA has helped disabled people.
Norb Ryan, Kentucky’s
ADA coordinator, often is consulted by businesses that are attempting to comply
with the law.
He said one of the
most puzzling things he encounters is that he often is called to examine
buildings for accessibility and finds that a relatively new building has major
accessibility problems.
Well-intentioned
business owners sometimes install a ramp and then discover it is too steep to
be used. “That's the kind of calls I hate to get, because you know they are
trying,” Ryan said.
Overall, though, he
believes Kentucky has made progress in terms of accessibility. “I think we're
in pretty good shape,” Ryan said. “We seem to be one of the states in the country
as far as being accessible to people of all kinds of disabilities. I think
we're getting there. I feel pretty good about where we are.”
Harned, previously
of the Access Center, said she thinks ADA made an initial splash and did raise
awareness.
But 15 years after
the bill became law, it’s become “a back-burner issue,” she said. “We still
have a long way to go.”
Harned also makes
the point that businesses that comply with ADA find that all kinds of people,
besides the disabled, benefit from features designed for wheelchair ramps and
other accessibility features.
Mothers pushing
strollers, for instance, find curb cuts especially handy, and extra-large
bathrooms with plenty of turn-around space for a wheelchair feel spacious to
anyone using them.
Employment versus
customers
Yohannes speaks
warmly about the accommodations his employer has made. Putting all of his
classes in one building makes for a much easier day for him and his guide dog,
he said. He's appreciative of much of the technology the university has
provided.
But when he deals
with businesses as a customer, his tone changes. Waiters and physicians address
questions to his wife instead of speaking to him. When people do speak to him,
they talk much louder to him than to his wife.
Several years ago,
he was even booted from a restaurant for bringing in his guide dog. And only on
one occasion can he ever recall being handed a Braille menu in a restaurant.
Even with the
passage of ADA, Yohannes believes that some establishments have a long way to go
in understanding the needs of the disabled.
Many have simply
never dealt with someone who is disabled and just don't give it any thought.
“I don't think they
are aware of the law or of disabled people,” Yohannes said. “It's not out of
meanness.”
Robyn Davis
Sekula is a freelance writer for Business First.