It has been more than 10 years since the public accommodations provisions of the Americans with Disabilities Act (ADA) became law, yet many small businesses are still unaware of its provisions and compliance requirements which may have a significant effect on their bottom lines. Specifically, Title III, the public accommodations provision of the ADA, applies to all businesses, regardless of size, that provide a service to the public. Over the years, some small businesses have found themselves the target of frivolous and not-so-frivolous lawsuits arising from accessibility for the disabled. Regardless of the legitimacy of the litigation, it is important to remember that a proactive approach to assess accessibility and make simple, common sense changes may be all that is needed for small businesses to manage the risks associated with Title III.
Not since the enactment of the Occupational Safety and Health Act (OSHA) of 1970 has a law impacted business, particularly small business, as much as the Americans with Disabilities Act (ADA) of 1990. Signed into law by President George Bush on July 26, 1990, the ADA was created to protect disabled individuals. Title I of the ADA, which guarantees equal employment opportunities for such individuals, is perhaps the portion of the Act with which most employers are familiar. However, the ADA is a broad statute which provides an extensive range of protections for disabled individuals beyond the scope of employment. The ADA also prohibits dscrimination against individuals with disabilities in public transportation (Title H), provides for public accommodations and access for persons with disabilities (Title JJI), and even precludes discrimination against individuals with disabilities in terms of access to telecommunications (Title IV).
Because many small employers are not required to comply with the employment provisions of Title I (an employer must have 15 or more employees for this to apply), they are not aware of their compliance obligations under Title III. Without a doubt, the most significant impact that the ADA has on small business arises from Title III, Public Accommodations and Services Operated by Private Entities. Unlike Title I, Title III is applicable to every business, regardless of size, and requires all businesses to accommodate customers and clients with disabilities.
The purpose of this article is to acquaint small business owners and managers with their responsibilities to provide appropriate public accommodations under Title III of the ADA. In order to do this, the legal terminology associated with public accommodations is initially discussed. Next, the enforcement provisions of the ADA are presented (particularly the remedies which a party making a complaint may receive from a business should the business be found in violation of the Act). Specific attention is given to business owner liability for noncompliance and considerations for risk management. Experiences with the public accommodations provisions of the ADA since enactment are then addressed. Ultimately, the article concludes with some implications for small businesses regarding compliance with the ADA's public accommodations provisions, including risk management considerations.
BUSINESS OBLIGATIONS UNDER THE ADA'S PUBLIC ACCOMMODATIONS PROVISIONS
Under the ADA, it is explicitly stated that "No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation" (Americans with Disabilities Act, 2002, § 12182). This legal definition includes not only policies, practices, and procedures which deny the disabled access to a public accommodation, but also physical barriers as well.
The Act defines an "individual with a disability" as one who "has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or who is regarded as having such an impairment" (Americans with Disabilities Act, 1990, § 12102(2)). …