Operators on ADA: more gains than pains, so far

Nation's Restaurant News, Feb 1, 1993 by Robin Lee Allen

When former President Bush signed the Americans with Disabilities Act into law in July 1990, it struck fear into the hearts of foodservice operators nationwide.

Despite predictions that an onslaught of lawsuits is still on the horizon, many operators have found that ADA to be less damaging than they expected in the year since Title III went into effect.

The comprehensive measure intended by lawmakers to prevent discrimination against people with disabilities was initially viewed by operators as a complicated ruse designed to make them the target of litigation from a select group of employees, potential employees and patrons. But so far this has not proved true.

"There was real concern on the enactment date that we would be in a defensive posture," said Bill Lancaster, human resources coordinator and ADA coordinator for Spartanburg, S.C.-based TW Service Inc. "But we've tried to turn it around and make it positive."

Many operators have found that the law's spirit was already part of their philosophy, and that the nebulousness of terms like "reasonable accommodation" and "readily achievable" offers some room to maneuver.

"It was kind of frightening with the explanations at first," said O.E. Philpot, marketing vice president for Lebanon, Tenn.-based Cracker Barrel. "But when we looked at it, it was kind of commonsensical -- both with regard to customers and employees."

In addition, many operators admit that the time and money poured into properties and personnel procedures to ensure compliance has made their operations better places to work and to visit.

"If it's done anything, it's made all of our employees more aware," said Andy Lansing, executive vice president and general counsel for the Chicago-based Levy Organization. "We didn't change the way we did business since the act came into being. We made sure people understood the act."

Also helping to defray initial fears is the smaller-than-anticipated number of formal legal charges the ADA has generated so far although lawyers warn a deluge may be just around the corner.

"I would anticipate that once you get the educational process completed from the charging party's viewpoint and a clear understanding of what can be done by lawyers, this will be one of the largest sources of potential liability that a restaurant can have," said Fletcher L. Hudson, a management labor attorney with McKnight, Hudson, Lewis & Henderson in Memphis, Tenn.

Since Title III went into effect on Jan. 26, 1992, mandating that businesses provide equal access to their facilities for people with disabilities, about 1,500 complaints have been filed with the Justice Department, with only one resulting in a lawsuit to date.

And since Title I went into effect on July 26, 1992, protecting people with disabilities from workplace discrimination if they are capable of performing the essential functions of a job, about 3,360 charges have been filed with the Equal Employment Opportunity Commission. The EEOC, too, has filed only one lawsuit to date.

"We had expected about 1,000 charges a month," said Dawn Ceol, an EEOC spokeswoman. "In the initial few months it was slow, but we expect it to pick up."

No estimates exist for the number of ADA-related charges filed with private lawyers so far although that number is also likely low, according to employment attorneys. The dearth of ADA-related charges and lawsuits is most easily explained by the law's youth. Potential plaintiffs are not yet familiar with their rights, and lawyers are not yet certain how the courts will react to ADA cases, lawyers explained.

'Lawyers will file more'

"It's too soon," said Betty Southard Murphy, a labor attorney with Baker & Hostetler in Washington, D.C. "What happens is that there has to be a few cases, and once those decisions come out, lawyers will begin filing more. People must get comfortable with the law, and then they file charges."

To spur the educational process, the EEOC now is issuing grants to teach organizations how to file charges, which will likely increase case numbers later on, Murphy added. Restraint on the part of both government officials and people with disabilities who want the law to be successful is holding the number of lawsuits in check, too, noted John G. Tysse, an attorney with McGuiness & Williams in Washington, D.C.

"A lot of individuals in the disability community are very sensitive to the fact that there is a substantial concern on the part of the business community about how this will be implemented," he said. "To be too aggressive would turn employers off."

He added that both the Justice Department and the EEOC currently are more concerned with educating the public about the law than enforcing it, a policy that is likely more political than benevolent.

"Because the ADA is controversial, if they had been aggressive prior to the election, I suspect it would have had a political impact," he said. "So maybe there was an unexpressed policy not to be too visible with an aggressive posture."

But with ADA awareness on the rise and legal eyes on the two lawsuits being pursued by the government and the November elections over, foodservice operators can expect a tug at their ADA security blankets.