Experts Say Law has changed

 A BUSINESS JOURNAL

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.