Posts Tagged ‘ Americans with Disabilities Act ’

Has ADA Gone Too Far with Poolmageddon?

March 16th, 2012. By AbiK

So pool operators have been given a 60-day extension to come up with an ADA-compliant plan for having public pool access for disabled individuals. The ADA pool access law was passed in 2010; the original deadline to comply with it was March 15, 2012. And somewhere in between, the new ADA pool lift regulation law has earned the moniker, “Poolmageddon”.

Even with the year+ lead time, did anyone really think that every pool affected by the ADA pool access law would a) figure out exactly what the law–the nitty gritty parts one needs to understand in order to comply—meant; and b) be able to source pool lifts, install the pool lifts, train staff, and do whatever else was needed to remain open (or avoid risking a DOJ wrist-slap or worse) by March 15?

One could argue that the public pools had plenty of time to be planning for this—but, if you’re at all familiar with public pool operation, it’s not like money is pouring in, so even a portable pool lift that doesn’t require electrical grounding or ripping up the pool deck can cost in the range of $6,000. Not pocket change for most pools. So it’s easy to see how compliance in providing disabled individuals with pool access may have been pushed to the back burner in many a pool budget meeting.

But once the public pool owners’ and operators’ backs were to the wall, and they had to figure out exactly what was required by the ADA pool accessibility law, well, who knew?

If it weren’t for the fact that ADA compliance is a serious issue—and no one wants to see the rights of a disabled individual curtailed or not honored, nor does anyone what the DOJ breathing down his neck—there would almost be a comical element to pool operators scrambling to figure out what the hell the ADA pool lift law means. There’s even an ADA Pool Lift Regulations group on LinkedIn—and the questions and comments sound in line with someone who’d been dropped into a corn maze at dusk without a flashlight and is screaming for help.

Much of the issue is the wording (ain’t it always so?) of the law. In order to comply, public pool operators must accommodate disabled individuals to the extent that it is “readily achievable” to do so. Uh, yeah. So if cash flow is not readily flowing, does that mean a pool lift is not readily achievable?

In reading a LinkedIn comment, it seems the Assistant AG for the Civil Rights Division at the DOJ responded to the “readily achievable” question posed in a letter from the American Hotel & Lodging Association (AH&LA). The response stated:

• “readily achievable [ is,] i.e., easily accomplished without significant difficulty or expense.”
• “…portable lifts can be used at existing pools if affixing the portable lift or installing a fixed lift is not readily achievable”, but must be fixed when it is readily achievable.
• The DOJ believes that the regulation as written provides the flexibility necessary for these entitles to evaluate whether and how to remove barriers to access and to take only actions that they deem are “readily achievable.”

Hmm. So you’re telling me I have to comply, but I have complete latitude to determine if—based on if I think it’s readily achievable—I will or will not comply—right?

You can see where this is heading, right?

Hello litigation!

There are other rather gray or vague areas to figure out as well—such as whether the need to comply with a pool lift is actually still an issue if you’re pool has a sloping entry. Good question. So it’s a veritable can of worms….

Let us know what you think—keeping in mind the issue is not whether or not disabled individuals should have pool access—they should. The issue is in how it’s regulated.

Tags: ADA, ADA Compliance, Americans with Disabilities Act, DOJ, Pool Lift Regulations
Posted in Discrimination, Human/Civil Rights | 2 Comments »

Should Dwarfism Preclude Working at Starbucks?

August 23rd, 2011. By AbiK

“Dwarfism is not a disease and opinions vary within the dwarf community about whether dwarfism is a disability. Dwarfism is a recognized condition under the Americans with Disabilities Act . Short stature can make some activities of daily living harder, such as using an ATM or gas pump. But most people with dwarfism have active, healthy lives and normal life spans.”

That’s a quote from WomensHealth.gov. The bold is from me as it caught my eye…is dwarfism a disability that’s rightly covered by the ADA? WomensHealth.gov is one of the sites I clicked through in order to try to gain more insight on the recent discrimination settlement where Starbucks agreed to pay $75,000 to a woman, Elsa Sallard, who has dwarfism and was let go after only three days of training as a Starbucks barista (“barista” being the adopted from Italy and seemingly inflated on US soil moniker for someone who makes, pours and hands over coffee, espresso or that quad venti skinny with whip iced caramel macchiato).

So Sallard, whose actual height has not been reported, must be 4 feet, 10 inches tall or less—as that’s the height one needs to be in order to be considered a dwarf (according to MedlinePlus, though the Mayo Clinic defines a typical range of “2 feet 8 inches (81 centimeters) to 4 feet 8 inches (142 centimeters)”). Four feet ten inches in and of itself would not seem to be a disability so I’m going on the assumption that whatever height Sallard is, she’s shorter than one needs to be to perform barista duties.

Regardless, she requested a stool or step ladder in order to facilitate her work behind the Starbucks counter. According to Reuters, the Starbucks manager at the location (El Paso, TX) where Sallard was being trained “ignored” her request and subsequently fired her, claiming she’d pose a danger to employees and customers.

While this may not be popular with all readers, I can see the manager’s point of view. I may not totally agree with it, and it certainly doesn’t align with how the ADA is worded**, but I can see where he might have been coming from. Particularly if the El Paso Starbucks was anything like a Manhattan Starbucks.

(**btw, the ADA considers a qualified individual with a disability to be “a person who meets legitimate skill, experience, education, or other requirements of an employment position that s/he holds or seeks, and who can perform the eessential functions of the position with or without reasonable accommodation. Requiring the ability to perform “essential” functions assures that an individual with a disability will not be
considered unqualified simply because of inability to perform marginal or incidental job functions. If the individual is qualified to perform essential job functions except for limitations caused by a disability, the employer must consider whether the individual could perform these functions with a reasonable accommodation. If a written job description has been prepared in advance of advertising or interviewing applicants for a job, this will be considered as evidence, although not conclusive evidence, of the essential functions of the job.” As such, dwarfism would be considered a disability.)

I recently had the pleasure of hitting a few Starbucks locations throughout NC, SC, GA and VA. It’s a pull up a chair and relax with some coffee kind of vibe. Not so in NYC. In New York, coffee’s gotta be served up PDQ or fuhgedaboutit. Doesn’t matter what time of day. So I can see where a manager at a busy Starbucks might first be thinking of mitigating the risk of injury prior to accommodating someone who can’t effectively reach all the necessary equipment to wait on customers.

It’s not hard to imagine the hustle and bustle behind the counter with waves of piping hot coffee (where’ve I heard that before?) cresting at the rim of every cup that’s being shuttled around. Throw in a step stool to maneuver about and it’s a burn injury waiting to happen at the very least; a slip and fall injury (or worse) at the worst.

The manager’s concerns—if that’s what they were—really aren’t part of the equation when it’s an ADA case. So for Sallard, Starbucks should’ve just run out to Lowe’s and gotten a blessed step stool. Instead, they’re coughing up $75,000 and providing diversity training on how to manage associates with disabilities.

Tags: ADA, Americans with Disabilities Act, Dwarfism, EEOC, El Paso TX, Elsa Sallard, Starbucks Discrimination, Starbucks Dwarf
Posted in Discrimination, Emerging Issues | 3 Comments »