The ADA After a Decade: The Industry's Efforts to Provide Accessible Hospitality (Restaurants USA, September 2000)

September 2000 issue

The ADA After a Decade: The Industry's Efforts to Provide Accessible Hospitality

Restaurants USA magazine's final issue was published in September 2002 but these archived articles remain available for our readers' convenience.

Restaurants USA, September 2000

It's been 10 years since the Americans with Disabilities Act became law. How has this important legislation affected restaurants?
By Beth Panitz

Ten years ago, President George Bush signed into law the Americans with Disabilities Act (ADA). The legislation promised to help people with disabilities by opening the door to more job opportunities and welcoming them into public places, including restaurants. At the time, President Bush acknowledged concerns that this well-intentioned law "may be vague or costly or lead endlessly to litigation," but the government wouldn't allow that to happen, he promised. A decade later, have the promises of the ADA rung true?

The ABCs of the ADA

The ADA guarantees civil-rights protection for persons with disabilities. "The law imposes significant obligations on foodservice businesses," says Peter Kilgore, senior vice president and general counsel for the National Restaurant Association. Two of the law's five sections impact restaurants, he explains.

Title I of the ADA prohibits employers from discriminating against any individual with a disability who, with or without reasonable accommodation, can perform the essential functions of a job. Title I covers businesses with 15 or more employees.

Title III of the law prohibits businesses — including foodservice operations — from discriminating against customers with disabilities or perceived disabilities. The law requires that any facility opening for first occupancy after January 26, 1993, be readily accessible — everything from parking spaces to entranceways to restrooms.

Facilities that opened prior to the 1993 cutoff are not required to provide full accessibility. However, any major renovations on older construction — that took place after January 26, 1993 — must make the altered areas readily accessible to individuals with disabilities, to the maximum extent feasible. The ADA also requires existing facilities to remove architectural and communication barriers when such changes are "readily achievable." In other words, restaurants must make any changes that are easy to carry out without much difficulty or expense. Some readily achievable ways to remove barriers may include installing ramps, repositioning paper-towel dispensers and widening doors. But what's readily achievable for one restaurant may not be for another, depending on factors such as the restaurant's layout and revenue.

Putting out the welcome mat

"Over the past decade so much has changed," says Attorney General Janet Reno in the recent Justice Department report, Enforcing the ADA: Looking Back on a Decade of Progress. "It is no longer unusual to see people with disabilities dining out at restaurants, working in the office, participating in town-hall meetings, shopping at the malls, watching a movie or cheering at a stadium. That's because the ADA is making the dream of access a reality."

For their part, restaurants have worked to extend the welcome mat to people with disabilities — installing ramps, offering Braille menus and making curb cuts in sidewalks. For example, Ben Benson's Steakhouse in New York City has a Braille menu on hand for blind customers. "We don't get a lot of blind customers, but when we do, they're so delighted that we have a menu," says owner Ben Benson. The restaurant also makes other accommodations for visually impaired customers, he says. If needed — as in the case of four blind women who frequent the restaurant as a group — a waiter will cut their meat into cubes and explain the positions of the foods on the plate, noting where they would be on a clock. "We try to tell them, 'The meat is at 12, the potatoes are at 3, and the vegetables are at 6,' to give them some type of orientation," says Benson.

Boston's Ciao Bella restaurant also introduced a Braille menu about a year ago. The Massachusetts Association for the Blind prepared the Braille-version menu for a nominal fee, says Brent Michael Kaufman, Ciao Bella's executive host. The restaurant also has reading glasses and large-print menus on hand for people with difficulty seeing.

Yet both Ben Benson's and Ciao Bella's are not completely accessible. Ciao Bella has stairs to enter the restaurant and more to reach the restrooms; Ben Benson's has a flight of stairs to access its restrooms. Both restaurants operated at their present facilities several years before the ADA became law, thus, the law relieves such restaurants from the hardship of completely retrofitting an older building. "We're grandfathered in," says Benson. "Because we have an existing premise, we don't have to make certain changes. To build a men's and ladies' room on the ground floor would put me out of business. They would take up so much space it wouldn't leave me with room for enough tables."

Christina Baker, a wheelchair-bound resident of Fairfax, Virginia, has witnessed firsthand the accessibility improvements at restaurants. "They've come a long way from what they used to be," says Baker, who has cerebral palsy. "But there's still a lot of room for improvement." Older restaurants are sometimes off limits to her because of steps; at other times bathrooms aren't accessible.

Perhaps most frustrating to Baker are restaurants that treat her differently because of her disability and address her companions rather than talk to her directly. That is why the Blue Iguana in Fairfax, Virginia, is among her favorite eateries. "They basically just talk to me as a person. They treat each person as a person."

Baker is helping to create an online guide to accessible restaurants. The Wired on Wheels project (www.wiredonwheels.org) invites people to rate the 300,000 restaurants nationwide on the basis of accessibility in America Online's Digital City database. Restaurants are reviewed on factors such as whether they have large-font or Braille menus and the accessibility of their parking, entranceways and other public areas.

The long arm of the lawyer

The Shadowbrook Restaurant in Capitola, California, is among the many restaurants that have worked to welcome customers with disabilities. "We're in the hospitality business," says owner and National Restaurant Association Board Member Ted Burke. "Our role is to make people feel welcome. The fact that a person may be in a wheelchair doesn't alter that one bit."

Burke estimates that he spent more than $200,000 to make his restaurant more accessible between 1992 and 1997. He renovated the walkways leading to the restaurants and worked out a plan with the city to build accessible restrooms and to install a wheelchair lift from the entry level to the main level. But in 1997 — before the work could be completed — he was slapped with a lawsuit for not complying with the ADA. The suit also cited problems with the "hillevator" that carries customers down from a hill to the restaurant's entrance, despite the fact that when the hillevator was reconstructed in 1989, a building inspector had tested it for wheelchair clearance.

"Regrettably we've learned that there are plaintiffs out there who are not interested in justice but just in getting money," says Burke, who settled his case in March 1999. "We weren't disregarding the spirit or the intention of the law."

There's been a recent deluge of similar cases. In California, a single plaintiff — in one day — doled out lawsuits to 20 businesses along a stretch of highway, charging them with noncompliance with the ADA. Many ADA infractions are minor, such as Braille signs that are one inch too high, doors that are a half-inch too narrow, handicapped parking signs that need to be repainted, and the lack of signs directing people to handicapped-accessible entrances. Fixing these types of problems might cost a business a few hundred dollars, but the accompanying lawyer fees can quickly amass into thousands of dollars.

The increased ADA litigation is especially prominent in California, Hawaii and Florida, and has prompted some legislators to call for a modification in the current law. Earlier this year, Reps. Mark Foley (R-FL) and Clay Shaw (R-FL), introduced the Americans with Disabilities Notification Act (H.R. 3590). The bill would allow small businesses up to 90 days to correct an alleged ADA violation before a lawsuit can be filed against the business.

"To put it simply, the ADA is being used by some attorneys to shake down thousands of businesses from Florida to California," said Foley in his May 18 testimony before a House subcommittee. "Some attorneys apparently have figured out that the ADA can be a real cash cow for minimum work on their part."

Foley noted that in Florida a "blizzard of lawsuits" have been filed against businesses. "Most of these businesses had no idea that they were violating the ADA. And most didn't need a lawsuit to force them to make simple corrections, like adding parking signs or repainting old ones," said Foley.

Other people testifying for the bill included actor Clint Eastwood, who owns the Mission Ranch hotel in Carmel, California. Eastwood is being sued for ADA noncompliance, including an allegedly improper bathroom setup in his hotel. He said that when he bought the hotel, which dates back to 1850, he did everything he could to comply with the ADA. "It's really not fair," testified Eastwood, according to an Associated Press report. "These lawyers cloak themselves under the guise they're doing a favor for the disabled when they're really doing a disservice."

The National Restaurant Association is among the proponents of the ADA Notification Act. "The Association has long supported accommodation of individuals with disabilities, recognizing both an important customer base and a significant pool of potential employees," says Association President and Chief Executive Officer Steven C. Anderson. "A disturbing and growing trend, however, is diverting time, attention and money away from access and toward litigation. More litigation does not further the cause of accessibility."

Steven Grover, vice president of the Association's Health & Safety Regulatory Affairs Department, says the proposed bill would improve accessibility and reduce unnecessary litigation. Giving restaurants 90 days notice of an ADA infraction before suing is "one of the quickest ways to get the needed correction," he says. "The point of the ADA is not to punish folks; it's to increase access."

L&L Drive-Inn, a 50-unit quickservice restaurant based in Honolulu, Hawaii, has also been the subject of ADA legislation. In 1997, the company was sued for noncompliance at one of its units. Charges included the omission of Braille signs on restrooms and noncompliant seating. Owner Eddie Flores Jr. settled the case, and went about fixing accessibility problems at all L&L Drive-Inns. "They told me what to do and I followed it to a T," he says. He even hired an ADA expert to review his restaurants and notify him of any needed changes. Yet, a few months later, he was sued again for noncompliance. "I had just settled, and I got sued again," says Flores. This time, he decided to have his day in court.

L&L Drive-Inn was being sued for noncompliance at 11 units. A judge threw out four of the cases before they reached court, and then dismissed another four in court. The other three cases had split decisions. For example, Flores was instructed to place a sign on an outside door that led only to an employee restroom — not into the restaurant — directing people to the restaurant's handicapped-accessible entranceway. That's something that neither he nor his ADA consultant thought was expected.

"The problem is that you don't know what to do," says Flores. "I acted in good faith, and I still got sued." Flores supports the ADA Notification Act. "Just give us notice," he says. "We'll comply, but give us a break if it's a minor mistake.

"I think the ADA is a great law that helps disabled people," continues Flores. "I totally agree with it and will do anything to comply with it. The problem is that a number of lawyers have taken advantage of the law. Attorneys are finding it's an easy way to make money."

Flores' lawyer, Ken Kuniyuki agrees. "The ADA is so complex that a lay person can't understand it all. . . . You could be off by a fraction of an inch, and you can do it accidentally."

The bill's opponents argue that after 10 years, businesses should know how to comply. The bill will prompt businesses to avoid making accessibility changes until a complaint has been filed, they say. But Kuniyuki contends that the ADA has "so many gray areas" and "fine details" that businesses can't readily know what's expected. Even hiring an ADA expert for assistance — as in the case of the L&L Drive-Inn — does not completely safeguard an operation from litigation, he says. "It's common sense that there should be access, but it's not common sense on how to provide the access," says Kuniyuki.

Complicating matters is the fact that the U.S. Department of Justice recently proposed new ADA accessibility guidelines for buildings and facilities. "The proposed changes have the potential to create enormous cost and business disruptions to restaurants, while not necessarily resulting in substantially improved access for the majority of special-needs customers," says Grover. "We are particularly concerned with the economic and operational effect of changing dimensional benchmarks and definitions, and the effect on restaurants that have already made large investments to comply with ADA standards."

With so many gray areas already existing, the proposed guidelines will only create more uncertainty, he says. "We knew how the old guidelines were interpreted. Now we'll have to start all over. . . .We question the need for such a massive rewrite of the existing guidelines after just eight years of use." The Association has submitted formal comments to the US Access Board noting its complaints about the proposed changes.

Equal-opportunity employers

Restaurants also have made great strides in complying with Title I of the ADA, which prohibits employers from discriminating against disabled job applicants and employees — although industry critics might point to cases such as that of a Chuck E. Cheese pizza parlor in Madison, Wisconsin, which fired a mentally retarded man from his job as a janitor after three weeks. A Wisconsin jury found that the man was qualified for the job and had been discriminated against under the Americans With Disabilities Act.

On the other end of the spectrum, there's the Wilson Street Grill — also in Madison, Wisconsin. Ten of the Wilson Street Grill's 27 employees have disabilities, mostly mental or developmental disorders, such as major depression, autism and schizophrenia. They work as cooks, servers, dishwashers and food-preparation assistants — whichever job best suits their abilities.

Co-owners Nancy Christy and Andrea Craig work closely with the Wisconsin Department of Vocational Rehabilitation to place disabled workers at their restaurant. In return, they receive loyal and hardworking employees. The pair also received a $5,000 check and nationwide acknowledgment for their community involvement when the Wilson Street Grill was selected as a winner in the Association's Restaurant Neighbor Award, presented by American Express Company.

Christy and Craig accommodate their disabled workers by tailoring jobs to match their strengths. "At most places, a job description is A to Z and you need to be able to do everything in the description. We operate differently. If we find that you can do D to T, then we create a job around that," says Christy. For example, some mentally disabled employees enjoy and excel at activities such as pouring beverages, filling sugar bowls and cutting lemons, so Christy and Craig created a back-waiter position that includes such tasks.

Despite their disabilities, employees must be able to meet the demands of their jobs to work at the Wilson Street Grill, says Christy. "We have high standards and if you can't meet them, you can't work here." For example, servers must pass a test about the menu and all employees have a probationary period. "If you can't do the job, you can't stay around," she says.

Christy recently released a video designed to assist other restaurateurs in hiring workers with disabilities. "It gives information to restaurant owners and managers and addresses their fears," she says. She is currently developing an accompanying handbook.

Faced with a tight labor shortage, eegee's restaurant of Tucson, Arizona, has increased its efforts to recruit nontraditional workers, including those with disabilities. Last year, eegee's deli opened a training restaurant for developmentally disabled adults. The restaurant works closely with Tucson's Beacon Foundation, which offers vocational and rehabilitative training for disabled adults. The trainees work in a variety of positions — from sandwich-making to janitorial work. Employees who successfully complete the training are placed in a job at one of eegee's 21 units.

The company offers special accommodations for employees with disabilities, says Paul Wagler, Beacon Foundation executive director. To give trainees time to develop needed skills, eegee's extended the probationary period at its training restaurant from 30 days to 90 days. Acceptance, patience and tolerance are also essential when working with developmentally disabled employees, says Wagler. "Our people generally don't have much turnover," he says. "They're very dedicated and committed once they get the task down."

"We've always had employees with disabilities," says Irving, pointing to the examples of an assistant manger with a hearing problem and a counter worker who had only one arm. Whether a person can perform the job's "essential functions," determines if eegee's hires the applicant. Irving recounts that his son, who worked as an eegee's manager, once hired a man with only one arm for a counter job — but didn't notice the disability until the employee's first day on the job. "The guy said to him, 'It makes no difference. I can do the work as well as anyone else,' " says Irving. And he did. Happy to have such a good employee, the young manager told his father he was glad he hadn't noticed the disability at first, because he wasn't sure how he would have handled the situation. "I said, 'It's simple,' " recounts Irving. "You would have told him, 'These are the duties of the job . . .' And then you would have asked him if it's something he wanted to tackle."

Doors wide open

"The ADA has markedly increased accessibility," says Grover. "It's been phenomenally effective. Think of all the ramps and all the wider doors at restaurants that we didn't see 10 years ago." Such changes allow restaurants to extend their hospitality to more customers. But it hasn't been all good news for businesses. Grover is concerned about the recent deluge of ADA-related lawsuits and proposed changes in the ADA accessibility guidelines that might make restaurants even more vulnerable to lawsuits. "The intent of the ADA was never to make it easy to have lawsuits," he says. "The intent was for more people with disabilities to have more access. We've done a great job of that and need to continue the work."

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Beth Panitz is an assistant editor at the National Restaurant Association.