Monday, May 02, 2005

Fortune Small Business on Entrepreneurs and the ADA

See this article. A taste:

The ADA, which turns 15 this year, has literally broken down barriers for Americans with disabilities. Most small-business owners say they want to comply. But many also believe that the law's requirements are growing vaguer and more onerous. The two primary federal agencies that oversee the law—the U.S. Department of Justice and the Equal Employment Opportunity Commission—don't do any policing. This might seem like good news to those who hate government regulation, but there's a downside. With no inspectors making the rounds of small businesses to issue warnings to those that aren't complying, it's up to entrepreneurs to stay abreast of how the broadly written statute is interpreted in courts around the country.

Those who don't keep up risk getting sued—and even if they win in court, they often lose time and legal fees and suffer damage to their reputation. While the ADA is quite specific on some requirements, there are a lot of gray areas. The law contains many detailed rules related to access to public spaces such as stores and restaurants. For instance, doorways must have openings at least 32 inches wide. Such guidelines apply even to businesses operated by one person. But the rules about access are less stringent for older buildings than for those built after 1992. How much less stringent is a matter of interpretation.

The ADA also covers discrimination against employees with disabilities, an equally fraught issue for employers. If a small business fails to hire a qualified job applicant who is deaf or copes with diabetes, it faces a potential lawsuit. The same goes for a company that fires or downgrades the job duties of a disabled person. But this part of the law differs from the one governing access because it applies to any company with 15 or more workers.

Small businesses are supposedly held to lower standards than large corporations and are required only to comply with the ADA in ways that are "readily achievable." But that term is defined on a case-by-case basis. "It's really difficult for a small business to keep up with all the rules and regulations" and court decisions, says William Anthony, a Florida State University management professor and expert on the ADA.

The law even extends to psychiatric conditions. Fire a poor performer who happens to be depressed, and that employee may be able to sue, arguing that his condition is a disability. For such a case to hold up, the plaintiff needs to have a diagnosed condition and an employer must know about it. But ADA lawsuits stemming from psychiatric conditions are notoriously murky.

The article gives you a good sense of how the organized business community feels about the ADA, though I think it pretty substantially overstates the burden the law places on businesses.


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