ADA Law and Accessibility: The Costs of Non-Compliance
Author: Thomas C. Weiss : Contact: Disabled World
Published: 2009-12-20 : (Rev. 2019-02-14)
Synopsis and Key Points:
ADA law has achieved a degree of accessibility in society for people with disabilities through pursuit of thousands of cases.
The Americans with Disabilities Act (ADA), through formal and informal settlement agreements as well as lawsuits, and the department dedicated to enforcement of ADA law, has achieved a degree of accessibility in society for people with disabilities through pursuit of thousands of cases.
According to general rules which govern lawsuits that are brought before the federal government, the Department of Justice is unable to file a lawsuit unless it has first unsuccessfully tried to settle a dispute through negotiation. The Department does have the ability to file lawsuits in federal court in order to enforce ADA law, as well as obtain court orders that include back pay and compensatory damages with the intention of remedying discrimination. The Department, under title III, can obtain civil penalties of up to $55, 000 for the first violation on the part of an offender, as well as $110, 000 for subsequent violations.
The year of 2009 found the Department of Justice pursuing a number of actions related to the ADA, beginning early in the year. The actions were taken because, despite the fact that ADA law related to accessibility and persons with disabilities have been in place for more than two decades, businesses seem to have a continued disrespect for both the law and the one-fifth of the nation's population that experiences a form of disability. The businesses represented in this article present only a few examples of the actions pursued by the Department of Justice, ranging in size from large to small.
U.S. v. Wales West LLC
On January 16, 2009, the Department filed a lawsuit in the U.S. District Court for the District of Alabama against Wales West LLC, a recreational vehicle (RV) park in Silverhill, Alabama, alleging that the park management discriminated against a child because of his HIV status. The suit alleges that after a couple mentioned to park staff that their two-year-old foster child has HIV, they were told that the child would not be allowed to use the RV Resort's pool or showers because of his HIV and that the owner said he might reconsider only if the couple could produce a letter from a doctor or the health department ensuring that the child could not infect others.
U.S. v. Amsterdam Hospitality LLC
U.S. v. 49th Street Realty Corp.; U.S. v. Alphonse Hotel Corp.: On January 13, 2009, the U.S. Attorney's Office for the Southern District of New York filed lawsuits in the U.S. District Court in Manhattan against the owners and operators of five hotels in New York's Theater District. All of the hotels presented significant barriers to accessibility and did not respond to the Department's efforts to negotiate a settlement agreement with them. The hotels include:
- Hotel Carter
- Amsterdam Court
- Radio City Suites
These lawsuits are the result of a hotel compliance initiative being conducted by the U.S. Attorney's Office in Manhattan. Under the initiative, forty-eight hotels in Manhattan's Theater District were reviewed to assess their compliance with the requirements of Title III, with the goal of removing barriers and improving access for guests with disabilities.
Agreements Reached with Manhattan Theater District Hotels
In January and March, 2009, the U.S. Attorney's Office for the Southern District of New York signed agreements with three additional New York City hotels under the same compliance review of 48 places of lodging in Manhattan's Theater District. The hotels that reached an agreement and complied with ADA law include:
- Sheraton New York Hotel and Towers
- W Hotel - The Tuscany
- W Hotel - The Court
The agreements require each hotel to survey existing guest rooms that are designated as being accessible and make them truly accessible. They are to provide an appropriate number of accessible guest rooms for persons with mobility disabilities, to include a specified number with roll-in showers. The hotels are to disperse accessible rooms among all classes of sleeping accommodations, as well as provide an appropriate number of guest rooms which are accessible for persons who are deaf or hard of hearing. The hotels are also to establish written policies and procedures for providing services to guests with disabilities and take other steps such as ensuring access for service animals, making entrances accessible, installing accessible registration counters, and provide TTY's at the front desk. To date, seventeen hotels have entered into settlement agreements with the U. S. Attorney's Office under this initiative.
Milwaukee World Festival
On February 3, 2009, the Milwaukee World Festival entered into a settlement agreement with the Department resolving a complaint alleging that the Marcus Amphitheater, a 23,000 seat outdoor concert venue, was inaccessible to people who use wheelchairs. The complaint alleged that the amphitheater did not have enough wheelchair and companion seating spaces and that the restrooms and concession stands were inaccessible. During settlement discussions, the Milwaukee World Festival added several dispersed wheelchair and companion spaces to the amphitheater and modified all of its concession areas and restrooms to bring them into compliance with the ADA Standards.
Walmart to Improve Access for People with Disabilities Nationwide
On January 16, 2009, Wal-Mart Stores, Inc., entered into a settlement agreement with the Department to improve access for people with disabilities at their stores nationwide, to include Supercenters, Sam's Clubs, and Neighborhood Markets. The agreement resolves an investigation that was initiated after the Department received complaints alleging a variety of issues, including refusing to admit, or excessively questioning, customers who use service animals.
According to the settlement agreement, Walmart is to:
- Investigate complaints
- Adopt and implement a new policy on service animals
- Take appropriate corrective action to resolve ADA violations
- Post the new policy on their website and in employee areas at their stores
- Provide additional training on the policy for store management and greeters
- Provide training on the new policy every Walmart associate who has contact with the public
- Establish a grievance procedure under which they will receive ADA complaints through a toll-free hotline
- Provide training for managers and greeters on their obligations under the ADA to maintain accessible features
- Make reasonable modifications in their policies, practices, and procedures as needed to accommodate customers with disabilities
Walmart will also pay $150,000 into a fund to compensate people with disabilities whose complaints were resolved by the settlement agreement. Walmart has also agreed to pay an additional $100,000 into a fund which will be used to finance a public service campaign with the intention of increasing public awareness of the rights of people with disabilities who use service animals.
Department of Justice Can Resolve Many Cases Without Litigation or Formal Settlement Agreement
At times, the commercial facility, public accommodation, State or local government quickly agrees to take steps that are necessary to comply with ADA law. At other times, more extensive negotiations are needed. What follows are two examples of cases that have been resolved through informal settlements.
A person who is deaf complained that a national chain hotel in New York did not provide a TTY for guests who are either hard of hearing or deaf. The owner of the hotel bought two portable hearing accommodation kits that include visual alarms and notification devices, as well as TTY's. The owner has also agreed to buy four more of the kits, and has paid the person who complained $1,500.
Another person who is deaf alleged that a medical practice in Pennsylvania refused to provide her with a sign language interpreter at their main office, even though they were willing to provide here with an interpreter at a satellite office that was not as convenient for her. The medical practice agreed to adopt a communication policy that is more effective; one that provides both auxiliary aids and services at all of their locations, as well as training for staff members in regards to the policy. The medical practice agreed to train its staff members in regards to the policy, post the policy in its offices, and pay the woman who complained $2,000.
The Key Bridge Foundation, through a contract with the Department of Justice, title II and III ADA complaints for mediation by professional mediators who have received training in regards to the legal requirements of the ADA. There are an increasing number of both individuals with disabilities and disability rights organizations who are specifically requesting the Department of Justice to refer their complaints for mediation. Greater than four-hundred professional mediators across America are available to mediate ADA cases. More than seventy-five percent of these cases, in which mediations has been completed, have been resolved successfully. What follows are examples of results achieved through mediation.
In the State of Illinois, a person who uses a wheelchair complained that the restrooms at a restaurant where a family wedding reception was held were inaccessible, causing her embarrassment because she had to be carried both in and out of the restroom. The restaurant responded by installing accessible stalls with grab bars in the women's and men's restrooms, with accessible sinks and paper towel dispensers. The restaurant also paid the woman who complained $1,000.
A person who experiences a mobility disability in the State of California complained that a car rental company failed to provide hand controls, despite the fact that he had requested them in advance. After waiting for ninety-minutes, he was forced to rent a car without hand controls, causing his wife to do all of the driving, inconveniencing both of them. The car rental company responded by training the agent who took the reservation to appropriately record hand control requests. The company instituted annual training for reservation personnel worldwide, as well as customer service training at the branch the man had visited. The company also agreed to publish one article each year concerning ADA compliance for three years in an employee publication that is to be distributed worldwide, provide the man who complained with a letter of apology, and paid him $2,700.
In the State of Georgia, a person who uses a service animal for both mobility assistance and seizure detection complained that security personnel forced him to leave a shopping mall because of the service animal. The mall responded by reaffirming its policy of allowing service animals, training its security personnel about service animals and the ADA, and adding materials concerning service animals to its employee manual. The mall also paid the person $7,000.
In an example of blatant violation of ADA law and disability bias, a person who is deaf complained that when he attempted to place his order at an Indiana fast food restaurant was refused service and ridiculed after restaurant personnel repeatedly misunderstood his written order. The misunderstanding escalated, the police were called, and the person was asked to leave. Through ADA mediation, the restaurant added pictorial menus at their counter that customers can use to point to their orders. The restaurant trained their staff members on the ADA, and paid the man $30,000 in compensation.
More than twenty years after the passing of the Americans with Disabilities Act, many businesses have chosen to follow ADA law and respect the greater than fifty-million Americans who experience a form of disability in this nation. Comprising one-fifth of the population, people with disabilities represent an immense consumer group in America. Unfortunately, there are still businesses in this nation that choose to attempt to avoid making their businesses accessible to this large group of consumers, forcing people with disabilities, disability rights groups, mediators, and the Department of Justice to take actions. The results are many times more costly than simply respecting the rights of people with disabilities and making a business accessible in the first place would have been.
Complaints regarding violations of title I of the ADA (employment) on the parts of units of State and local governments, or by private employers, should be filed with the Equal Employment Opportunity Commission. You can call 800-669-6820 (TTY) in order to reach the field office for your area. Complaints concerning violations of title II by units of State or local government, or violations of title III on the part of public accommodations and commercial facilities should be filed with:
U.S. Department of Justice
Civil Rights Division
950 Pennsylvania Avenue, N.W.
Disability Rights Section - NYAV
Washington, D.C. 20530
People who want their complaint to be considered for referral to the Department's ADA Mediation Program should mark the outside of the envelope with, 'Attention: Mediation.'
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- 2 - Celebration of ADA 30th Anniversary All Year Long : Agency Office of Disability Employment Policy (2020/01/06)
- 3 - Americans with Disabilities Act: ADA Faqs : U.S. ADA (2009/01/04)
- 4 - ADA Title II: Public Transportation Information : U.S. Department of Justice (2009/01/04)
- 5 - Administration for Community Living (ACL) : Secretary Sebelius (2012/07/31)
- 6 - Child Welfare Systems Under ADA and Section 504 : Departments of Justice and Health and Human Services (2015/08/20)
- 7 - ADA Title IV: Telecommunications Relay Services : U.S. Department of Justice (2009/01/04)
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