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    Everything Restaurants Need to Know About ADA Compliance

  • When it comes to the Americans with Disabilities Act, an operator’s best practice is to play it safe.

    Domino's
    In one highly watched legal case this year, the 9th U.S. Circuit Court of Appeals sided with a blind consumer who sued Domino’s Pizza after he was unable to order food from the company’s website and mobile app.

    The number of Americans living with disabilities is larger than many think. The Census Bureau reports that more than one in 10 of us—12.7 percent—have a disability that impacts major life activities. The Centers for Disease Control and Prevention puts the number at one in four U.S. adults, or 61 million people.

    This demographic makes up a sizable group of existing and potential restaurant customers. “People with disabilities are sometimes your most loyal customers,” says Shawn Pike, vice president at User1st, which provides Americans with Disabilities Act (ada) website accessibility services. “There’s an opportunity there.”

    Under the ADA and individual state codes, a stringent set of laws are in place for restaurants and other private businesses to accommodate those with disabilities, ranging from handicapped parking space requirements to sizing statutes for restroom facilities to rules for dealing with service animals.

    But the ADA, which was signed into law in 1990, covers much more than physical matters like the width of doors and placement of grab bars. It also requires businesses to transmit information effectively to those who have communication disabilities, including the blind and deaf. Many ADA guidelines, especially those regarding mobility issues, deal with areas that are quite specific, such as the size and number of handicapped parking spaces, width and slope of wheelchair ramps, and access to and height of restroom sinks. Others (namely those involving communication) may be viewed by some as open to interpretation or allowing of alternatives.

    Rights of the disabled under the ADA are also being clarified as technology evolves. In one highly watched legal case this year, the 9th U.S. Circuit Court of Appeals sided with a blind consumer who sued Domino’s Pizza after he was unable to order food from the company’s website and mobile app. The court wrote in its 2019 ruling, which allowed the lawsuit to go forward in district court, that the “alleged inaccessibility of Domino’s website and app impedes access to the goods and services of its physical pizza franchises—which are places of public accommodation.” In October, the U.S. Supreme Court refused to hear an appeal of that ruling.

    Despite cases like this, most operators “really want nothing more than to comply with the law and work with their customers and employees because they are important to them,” says Antoinette Theodossakos, a labor and employment attorney with Saul Ewing Arnstein & Lehr in West Palm Beach, Florida. In some cases, complying can be easy, she says, while others may be more expensive.

    The industry is “supportive of the ADA,” says Angelo Amador, senior vice president of legal advocacy and regulatory counsel for the National Restaurant Association. “We provide all types of guidance for restaurants,” he says. This includes a publication that addresses many ADA issues.           

    Still, he says the organization believes the law’s integrity is being compromised by so-called “drive-by” lawsuits—in which plaintiffs file multiple lawsuits—and web-related compliance suits that the NRA contends were not addressed by the original law. “We have been asking for legislation that allows restaurants to [address ADA issues],” Amador says. So far, that hasn’t been an approach that courts have favored.

    Although many quick-service and fast-casual restaurants are housed in new buildings that are constructed with the ADA in mind, the requirements also pertain to older structures—even historic ones to a certain degree.

    There’s no doubt that web-accessibility ADA lawsuits have exploded in recent years. The research team at UsableNet, which provides accessibility to websites and apps, found 2,285 of these cases were filed in 2018, up 181 percent from 2017. Out of those cases, 11 percent were related to foodservice businesses, with most filed in New York and Florida. “It’s unfortunate that various lawsuits have people taking advantage,” Pike says. “It makes it difficult for companies like us to show how easy compliance is.”

    There are many issues that limited-service restaurant operators need to consider when it comes to the ADA and disabled customers, says Harry Kelly, a partner in the Washington, D.C., office of law firm Nixon Peabody who deals with real estate and accessibility matters.

    “The first issue that should confront everyone is a customer with mobility issues,” he says. “You have to think about the ramp that gets you to the building, the parking spaces, and whether the door is wide enough to handle someone in a wheelchair.”

    Bathroom accessibility is an obvious matter, but so is a newer piece of equipment like an ordering kiosk, which brings height requirements into play. Even the drive thru should be considered, he says, including factors such as the height of window openings and the ability of some customers to communicate with employees who normally take orders through speakers.

    Although many quick-service and fast-casual restaurants are housed in new buildings that are constructed with the ADA in mind, the requirements also pertain to older structures—even historic ones to a certain degree. “Historic status doesn’t exempt you from the ADA,” Kelly says, and applicable regulations say you must still make changes to comply with the ADA “to the maximum extent feasible.” It is harder to make feasibility arguments when major renovations are involved.

    And while most people think of the ADA in terms of physical issues, the digital ones are just as crucial as technology and its benefits expand. The internet provides convenience and information; if brands aren’t vigilant about digital compliance, various groups can be excluded and even blocked from getting information.

    “Everything has moved so fast,” Pike says. As a result of the lightning-fast speed with which technology has progressed, many brands do not understand how their digital compliance or lack thereof is impacting people with disabilities and their access to the marketplace. As a result, he says, operators often don’t consider designing accessible websites from the outset.

    Theodossakos says the most common physical accessibility violation that triggers lawsuits involves parking lots, whether it’s the size or number of handicapped spaces or clear and accurate marking and signage for those spaces. Accessible routes into businesses, doors that are not only wide enough but are easy to open, and bathroom issues are other common elements that bring legal action.

    She tells clients to have a plan in place to deal with all aspects of the ADA. Training employees on the law, teaching them to conduct checks on bathrooms and points of access, watching for procedural hiccups, and continuously performing updates to make sure restaurants are within the law are helpful measures. “You have an ongoing duty to be compliant,” she says.