The Department of Justice estimates that 18 percent of the population has some sort of disability. This number obviously reflects a significant percentage of restaurants’ clientele, as well as their employees and potential employees. Accordingly, all full-service restaurants must be aware of the various Americans with Disabilities Act (ADA) regulations in effect, as well as how best to try to avoid ADA-related litigation.
Restaurants must be aware of Title I, which prohibits employers from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, and other terms, conditions, and privileges of employment. The ADA applies to employers with 15 or more employees. The ADA also requires that employers provide reasonable accommodations to qualified individuals with disabilities who are employees or applicants for employment, except when such accommodation would cause an undue hardship. It is always a prudent move to reach out to counsel when you have an employee or applicant with a disability who requests, or appears to need, a reasonable accommodation to perform his or her essential job duties.
Title III of the ADA guarantees disabled individuals the “full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.” Places of public accommodation include restaurants, regardless of the size of the business or the age of building. Owners, operators, lessees, and lessors are responsible for ensuring compliance with the ADA. Notably, although parties can allocate financial responsibility, they cannot allocate liability for ADA violations.
Restaurants are required to modify their business policies and procedures when necessary to serve and communicate with customers with disabilities, unless doing so would fundamentally alter the nature of the goods or services. For example, a restaurant employee may need to read the menu to a blind patron, or put the menu on a recording for the customer to hear. Providing menus in Braille or with large print are also common accommodations restaurants should be willing to provide.
The ADA also requires restaurants to remove architectural barriers in existing buildings where such removal is “readily achievable” and to make sure that newly built or altered facilities are constructed to be accessible to individuals with disabilities. For patrons who use wheelchairs, remember that there must be an accessible route to all dining areas, including raised or sunken areas and outdoor dining areas, as well as to the restrooms. This also means that dining tables should be spaced far enough apart so a person using a wheelchair can maneuver between them. Of course, the parking lot and entrance must also be accessible. Handicap parking spaces should provide easy access to the restaurant’s front entrance, and restaurants must comply with the legally prescribed size of the handicap parking spaces. The front door must be accessible by a wheelchair (a ramp may therefore be needed instead of a step in front of the door), and the door itself should not be too narrow for a patron in a wheelchair to come through. With respect to new construction, all these sizes are legally mandated.
Service animals represent an issue that has received increased attention lately, and can be a tricky situation for restaurants. It’s important for a restaurant not to have a pets policy that prohibits all animals (including service animals) from entering. The ADA takes precedence over local health ordinances that would otherwise prevent animals in restaurants. Service animals are defined only as dogs or miniature horses individually trained to do work or perform tasks for the benefit of an individual with a disability. No other animals are considered service animals. Currently emotional support dogs are not recognized as service animals, although psychiatric service dogs are recognized.
Restaurants are allowed to ask only for limited verification that the animal at issue is a true service animal. For example, you may ask 1) if the animal is required due to a disability; and 2) what task/work the animal is trained to do. However you may not require: 1) proof of service animal certification/licensing; 2) medical documentation; 3) that the animal demonstrate its ability to perform the task/work identified. Restaurants act at their own risk if they exclude an animal based upon their suspicion that it is not a true service animal.
Additionally, restaurants can ask that the service animal be removed when the animal is a direct threat, out of control or not housebroken, or if the presence of the animal would fundamentally alter the program or service provided. However, allergies and fear of dogs are not valid reasons for removal. Restaurants should tread carefully when removing a service animal from their facilities. If a service animal needs to be removed from the establishment, its owner should be allowed to stay and finish his or her meal.
Restaurant owners and managers should make sure that their employees are aware of the requirements for Title III. All personnel should know how to assist disabled patrons and what questions they may (and may not) ask when dealing with a customer’s service animal. The ADA is still a developing area of the law with plenty of nuances. The safest move for a restaurant to avoid liability is to reach out to legal counsel for clarification, questions, or for company-wide training. Doing so might just keep the restaurant out of hot water down the road.
The opinions of contributors are their own. Publication of their writing does not imply endorsement by FSR magazine or Journalistic Inc.
