Lawsuit, legislation could broaden ADA rules

Lawsuit, legislation could broaden ADA rules

WASHINGTON —Restaurateurs and other business owners could be facing increased legal challenges if federal lawmakers pass a measure that would alter the 17-year-old Americans with Disabilities Act by broadening the definition of what constitutes a disability.

The ADA Restoration Act of 2007, which was introduced in the U.S. House of Representatives and Senate as companion bills last summer and recently came up for committee review, is intended to restore to the ADA the broad protections proponents say have been whittled away by court decisions through the years. But opponents contend the Restoration Act would expand the definition to include nearly all Americans, such as those who wear eyeglasses or take medication for hypertension. —Restaurateurs and other business owners could be facing increased legal challenges if federal lawmakers pass a measure that would alter the 17-year-old Americans with Disabilities Act by broadening the definition of what constitutes a disability.

Both measures have bipartisan support. —Restaurateurs and other business owners could be facing increased legal challenges if federal lawmakers pass a measure that would alter the 17-year-old Americans with Disabilities Act by broadening the definition of what constitutes a disability.

Over the years thousands of restaurateurs have been sued for alleged ADA breaches, most of which stem from violations of the act’s Title III section, which requires operators to adjust their physical sites to better accommodate customers with disabilities. Some officials maintain, however, that the Restoration Act also would have a profound impact on employer-employee relationships. —Restaurateurs and other business owners could be facing increased legal challenges if federal lawmakers pass a measure that would alter the 17-year-old Americans with Disabilities Act by broadening the definition of what constitutes a disability.

“The Americans with Disabilities Act provides important protections for employees and those seeking employment,” said John Gay, the National Restaurant Association [3]’s senior vice president of government affairs and public policy. “However, [the new bill] would dramatically broaden the original legislation to change what constitutes an impairment under the law.” —Restaurateurs and other business owners could be facing increased legal challenges if federal lawmakers pass a measure that would alter the 17-year-old Americans with Disabilities Act by broadening the definition of what constitutes a disability.

David Wukitsch, an attorney with the firm of McNamee, Lochner, Titus & Williams in Albany, N.Y., and the litigation counsel for the New York State Restaurant Association [4], agreed that the measure broadens the scope of the term disabled and “expands the group of individuals who can sue under the statute for discrimination.” —Restaurateurs and other business owners could be facing increased legal challenges if federal lawmakers pass a measure that would alter the 17-year-old Americans with Disabilities Act by broadening the definition of what constitutes a disability.

“Perhaps millions more would be covered with this amendment,” Wukitsch said. —Restaurateurs and other business owners could be facing increased legal challenges if federal lawmakers pass a measure that would alter the 17-year-old Americans with Disabilities Act by broadening the definition of what constitutes a disability.

Currently, the law defines “disability” as “a physical or mental impairment that substantially limits one or more of an individual’s major life activities.” But proponents of the new measure, which include the American Civil Liberties Union, insist that a series of judicial decisions have narrowed the definition under the ADA from what Congress originally intended. —Restaurateurs and other business owners could be facing increased legal challenges if federal lawmakers pass a measure that would alter the 17-year-old Americans with Disabilities Act by broadening the definition of what constitutes a disability.

Sen. Tom Harkin, D-Iowa, who helped to craft the original legislation in 1990, said, “Many individuals who Congress intended to protect under ADA—including people with epilepsy, diabetes and cancer—are no longer protected as a result of these court decisions.” —Restaurateurs and other business owners could be facing increased legal challenges if federal lawmakers pass a measure that would alter the 17-year-old Americans with Disabilities Act by broadening the definition of what constitutes a disability.

As a result, the ACLU maintained, “the vast majority of ADA cases brought against private employers have been dismissed by the courts.” A 2006 study cited by the ACLU reveals that plaintiffs have lost more than 97 percent of ADA employment discrimination claims because the courts ruled the plaintiffs are not disabled. —Restaurateurs and other business owners could be facing increased legal challenges if federal lawmakers pass a measure that would alter the 17-year-old Americans with Disabilities Act by broadening the definition of what constitutes a disability.

The ADARA seeks to address the issue by eliminating the requirement stating that a physical or mental impairment must substantially limit one or more of an individual’s major life activities. The ACLU says that the new measure “restores the original intent of the ADA by clarifying that anyone with an impairment, regardless of his or her successful use of treatments to manage the impairment, is entitled to seek a reasonable accommodation in the workplace.” —Restaurateurs and other business owners could be facing increased legal challenges if federal lawmakers pass a measure that would alter the 17-year-old Americans with Disabilities Act by broadening the definition of what constitutes a disability.

Mike Shutley, the NRA’s director of legislative affairs, argued, however, that by broadening the definition of impairment, “you can include just about every American at one time or another in their lives.” —Restaurateurs and other business owners could be facing increased legal challenges if federal lawmakers pass a measure that would alter the 17-year-old Americans with Disabilities Act by broadening the definition of what constitutes a disability.

“It could be someone who forgot his eyeglasses,” Shutley said. “[That person] would be able to qualify for an accommodation under ADA.” —Restaurateurs and other business owners could be facing increased legal challenges if federal lawmakers pass a measure that would alter the 17-year-old Americans with Disabilities Act by broadening the definition of what constitutes a disability.

Ed Tinsley III, owner of 19-unit K-Bob’s Steakhouse [5], said the ADA is well-intentioned, but added: “It’s a shame to see what has happened to it. A number of employers have been subject to litigation not intended under the act.” —Restaurateurs and other business owners could be facing increased legal challenges if federal lawmakers pass a measure that would alter the 17-year-old Americans with Disabilities Act by broadening the definition of what constitutes a disability.

Tinsley, who is seeking the Republican nomination for New Mexico’s 2nd Congressional District [6], noted that broadening the coverage of certain aspects of impairment “opens the door to more litigation.” —Restaurateurs and other business owners could be facing increased legal challenges if federal lawmakers pass a measure that would alter the 17-year-old Americans with Disabilities Act by broadening the definition of what constitutes a disability.

The NRA also maintains that it would be a burden to businesses by forcing them to expand to nearly all employees the accommodation process they currently offer to individuals with disabilities. —Restaurateurs and other business owners could be facing increased legal challenges if federal lawmakers pass a measure that would alter the 17-year-old Americans with Disabilities Act by broadening the definition of what constitutes a disability.

“It makes things much more difficult,” Shutley said. “An employer couldn’t even consider the negative effects of medications. How far do you have to go to accommodate people?” —Restaurateurs and other business owners could be facing increased legal challenges if federal lawmakers pass a measure that would alter the 17-year-old Americans with Disabilities Act by broadening the definition of what constitutes a disability.

Shutley said the NRA also is concerned with the measure’s “unintended consequences.” For example, one unintended consequence of the ADA has been its use by activists to attempt to have smoking banned in restaurants and other public places. —Restaurateurs and other business owners could be facing increased legal challenges if federal lawmakers pass a measure that would alter the 17-year-old Americans with Disabilities Act by broadening the definition of what constitutes a disability.

An article appearing in the December 2007 issue of the Connecticut Law Review begins, “The American with Disabilities Act can and should be used to ban smoking in most indoor public places in the United States.” —Restaurateurs and other business owners could be facing increased legal challenges if federal lawmakers pass a measure that would alter the 17-year-old Americans with Disabilities Act by broadening the definition of what constitutes a disability.

In one case yet to be decided, James Bogden is suing four restaurants in Northern Virginia—Harry’s Tap Room in Arlington, Mike’s American Grill in Springfield, and Denny’s [7] and Clyde’s in Alexandria—claiming they are violating the ADA by allowing guests to smoke. Smoking in public places is still legal in Virginia. —Restaurateurs and other business owners could be facing increased legal challenges if federal lawmakers pass a measure that would alter the 17-year-old Americans with Disabilities Act by broadening the definition of what constitutes a disability.

But Bogden maintains that because he suffered a heart attack and has been diagnosed with coronary artery disease, he cannot visit those operations because secondhand smoke could potentially increase his risk of another heart attack. —Restaurateurs and other business owners could be facing increased legal challenges if federal lawmakers pass a measure that would alter the 17-year-old Americans with Disabilities Act by broadening the definition of what constitutes a disability.

Bogden argues that because the heart attack restricts his major life activities, the restaurants’ decision to permit smoking discriminates against him and violates the ADA. Michael Sternberg, co-owner of Essential Restaurant Holdings, the owner-operator of Harry’s Tap Room, acknowledged the lawsuit, but said he could not comment because it was under litigation. —Restaurateurs and other business owners could be facing increased legal challenges if federal lawmakers pass a measure that would alter the 17-year-old Americans with Disabilities Act by broadening the definition of what constitutes a disability.

The four restaurants maintain that Bogden is not disabled under the ADA’s current definition. —Restaurateurs and other business owners could be facing increased legal challenges if federal lawmakers pass a measure that would alter the 17-year-old Americans with Disabilities Act by broadening the definition of what constitutes a disability.

Other individuals also have used the ADA to sue restaurants over the smoking issue. In 1993 a suit was filed against McDonald’s [8] and Burger King [9] in Connecticut to ban smoking, while in 1997 Ruby Tuesday [10]’s and www.redlobster.com [11]"Red Lobster outlets were sued for the same reason. —Restaurateurs and other business owners could be facing increased legal challenges if federal lawmakers pass a measure that would alter the 17-year-old Americans with Disabilities Act by broadening the definition of what constitutes a disability.

“The [ADARA] is too broad and does more than it was intended to do,” Shutley said. —Restaurateurs and other business owners could be facing increased legal challenges if federal lawmakers pass a measure that would alter the 17-year-old Americans with Disabilities Act by broadening the definition of what constitutes a disability.

Tinsley noted that litigation stemming from ADA violations “can be devastating from a time, money and energy focus.” —Restaurateurs and other business owners could be facing increased legal challenges if federal lawmakers pass a measure that would alter the 17-year-old Americans with Disabilities Act by broadening the definition of what constitutes a disability.

“When you think about the job juggernaut the restaurant industry has been over the past year,” Tinsley said, “I don’t think the government should be throwing more obstacles in our path.” —Restaurateurs and other business owners could be facing increased legal challenges if federal lawmakers pass a measure that would alter the 17-year-old Americans with Disabilities Act by broadening the definition of what constitutes a disability.

In an effort to decrease litigation stemming from alleged Title III violations of the ADA, the NRA is supporting the ADA Notification Act, or H.R. 3479. The bill, which is sponsored by Rep. Ric Keller, R-Fla., would give operators 90 days to review and correct any alleged accessibility problems. Opponents of Keller’s bill note that businesses already have had 17 years to comply with the ADA. —Restaurateurs and other business owners could be facing increased legal challenges if federal lawmakers pass a measure that would alter the 17-year-old Americans with Disabilities Act by broadening the definition of what constitutes a disability.