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various accommodations based upon several studies and reputable news articles published during 1988:
$1,000 to $10.000 for a concrete ramp (cost depending on number of steps to be ramped)
$3,000 to widen and install a now exterior door
$300 to $600 to widen and install a new interior door
$300 to $3,000 to modity an existing public restroom
$ 150 to $700 to purchase a Telecommunications Device for the
$2.50/page to translate written text into Braille form
This list is by no means exhaustive, but it indicates that not all accommodations can be described as 'no big deal”, particularly to a small, marginal business.
Small businesses are not necessarily well oft and able to attord many extra expenses. According to a recent NFIB survey. 42.7 percent of small businesses averaged gross receipts of less than $350.000 last year. Another 18.8 percent averaged less than $750,000. More than
half of small business owners (56.6%) took out of their businesses less
than $30,000 last year.
In light of these statistics, it should be no surprise that small
businesses fear the costs associated with the ADA DIN. Several modifications of the language can alleviata a substantial portion of ther concem.
Understanding of Disabilities
While the ADA bil has been reformulated to reflect certain definitions within the Rehabilitation Act, little understanding exists regarding the specific requirements for businesses. General guidelines ore provided, and case law provides additional guidance with respect to individual cases, but these are entirely inadequate in providing
specific parameters for business compliance.
For example, the regulations for the Rehabilitation Act do not list what types of disabilities are covered. The result of this lack of clarity is reflected in the confused case low associated with the Act where courts have been forced to determine which conditions, diseases, and behavioral patterns are 'disabilities' protected by the Act on a case-by-case basis. One case was brought in which a woman claimed o disability because she was dependent upon her dog. While the woman did not prevail, her case is illustrative of the types of disabilities individuals may attempt to bring under the ADA bill.
It is simply ridiculous to expect individual business owners to know which disabilities are covered and therefore must be accommodated. And business owners will never know if they have guessed right or wrong until a complaint is filed and a decision is rendered.
A Senate amendment specifically excluded from coverage several types of conditions or behaviors that would have had serious consequences for business owners – particularly pyromanla and kleptomania. But how many more conditions that could endanger o business remain in the bill? And how many more cannot possibly be anticipated by a business owner? And how can a business owner be expected to know how to accommodate some of the lesser known
disabilities when he/she has no concrete list to which to refer?
At the very least, a list of disabilities, with a layman's description of
each disability, should be included in the bill. When necessary. it can be amended to add or delete disabilities as technology and research bring us closer to understanding and addressing various disabilities. Certainly, it will be difficult to compile a list of the 900 types of disabilities the proponents indicate are covered under the ADA bill. But without such a list to provide guidance. business owners will not know what is covered and will never be safe from the threat of litigation. And
individuals with less well known disabilities will never know if they can
Small Business Exemption
Small business owners are not specialists in disabilities, nor are they legal experts. Yet, the ADA bill, in its broad approach. demands the same level of awareness and responsiveness from them as it does on
The drafters of the ADA bill recognized the problem small businesses will face in the employment section of the bill and included a small business exemption. However, an exemption was left out of the public accommodations section which affects patrons to the business. This makes no sense whatsoever. The employment section is no more burdensome than the accommodations section, leading one to conclude that an exemption is appropriate in both.
The bill does not provide specific parameters, only general definitions that are inadequate. No one has any idea of what the ADA bill will cost small businesses. No one has any idea of the specific types of disabilities covered by the bill. Clearly, a small business exemption for public accommodations, based upon the language on the employment section, is appropriate and necessary. It will remove the fear of litigation from the smallest of businesses who are least able to afford it.
Definition Questions in the ADA Bill
The business community fought long and hard to get clear definitions of a number of terms that either appeared in the Rehabilitation Act or are new. Even so, some of these terms -- 'readily achievable', 'reasonable accommodation', and 'undue hardship' – have not been adequately addressed.
To paraphrase Title I (the employment section), businesses must make reasonable accommodation unless it results in an undue hardship. Title III (the public accommodations section) requires
accommodation if it is readily achievable. Both of these standards pose serious threats to small businesses, even in their amended forms. Undue burden is defined as 'an action requiring significant difficulty or
expense'. Readily achievable is defined as "easily accomplishable and
able to be carried out without much difficulty or expense'. This last
term has never before been used in law.
Both of these standards are further refined to take into
consideration (paraphrasing) the size of the business, the type of facilities, the size of the budget, the type of operation, and the cost of
the accommodation. In addition, an amendment was added to the public accommodations section that 'good faith efforts by a business owner to comply with the law must be considered during a civil action against a business owner.
NFIB supports these hard-won clarifications. However, business
owners will still never know if they have done what is necessary to avoid legal action since all of the above criteria are, like beauty, in the eye of the beholder. While a business owner may believe that modifications costing more than $500 or $2.000 or $5,000 would constitute an undue
hardship. a court may feel differently.
A better solution would be a dollar or percentage-of-net-profit cap
on what a business is expected to spend on structural alterations.
physical alterations, and auxiliary aids and services. Such a cap would
provide a type of safe harbor against lawsuits. This is particularly important for small, marginal, or failing businesses since the costs of going to court, even if the business owner eventually prevails.