The ADA: Titles II and III

Snow Removal and the ADA

Does the Americans with Disabilities Act (ADA) require me to remove snow from the sidewalk in front of my business?  The short answer is "yes."

Business owners in Ohio are generally not required by common law to remove snow or ice from its sidewalks.  The Ohio Supreme Court said, in essence, that Ohio winters can be tough, and if you go out in bad weather, you are responsible for your own safety.  A business might still be responsible to remove snow under local laws or municipal ordinances.  Additionally, a business might have the responsibility under the terms of its commercial lease to remove snow. 

Regardless of state or local law, or commercial lease terms, the business might be responsible for snow removal under the Americans with Disabilities Act.  The ADA states that a route into a business must be made accessible and usable to people with disabilities.  A route is not just the sidewalk.  A route includes the disabled parking spaces, pathways from parking to any sidewalk and pathway to the business entrance.  Accumulations of snow and, or, ice might make it impossible for someone in a wheelchair or using a walker to get through the snow and into the business.  The ADA points out that temporary or isolated periods of inaccessibility can happen but must not exist beyond a reasonable period of time.

If a business leases space, and the landlord is the responsible party in the lease for removing snow and does not remove it, the business cannot absolve itself from responsibility for noncompliance with the ADA.  The ADA holds all parties jointly liable.  A complainant can sue both the landlord and business tenant.  The tenant can then sue the landlord for indemnification per the landlord's contractual duty under the lease, but the business tenant cannot escape responsibility under the ADA by contracting its duties away.

The best advice for businesses in Ohio and other wintery states is to keep pathways and disabled parking spaces clear of snow.

Extra charges for gluten-free menu items and the ADA

P.F. Chang's restaurant adds a $1 surcharge for items from its gluten-free menu.  It is being sued by a woman with celiac disease (as part of a class action) who claims that the surcharge is discriminatory and in violation of the Americans with Disabilities Act (ADA).

Without commenting further on the lawsuit, I could guess instantly at the problem.  Gluten-free food is what a person with celiac disease is limited to eating, it is not just a preference.  Celiac disease can be disabling; moreover, it can be life threatening.  So, why grab the attention of a diner with a medical condition by saying that they must pay extra for their food?  Even if this lawsuit fails, my point stands.  The same result could be expected of a parking lot that charges extra for the larger and closer disabled parking spot, or the museum that actually charged extra for patrons who used electric wheelchairs as a surcharge against any resulting damage to exhibits.  If you court attention by singling out anyone with a disability, in today's society you will court a lawsuit.  This is not simply because of a litigious society, but because people are more aware of the law, of disabilities, and of a disdain for being treated unfairly, whether it is justified or not.

The Department of Justice has determined that food allergies can be a disability under the ADA. Whether this is a slippery slope argument remains to be seen--will plus-sized clothing that typically costs more than the "regular sized" clothing be considered discriminatory?  I doubt it.  Plus-sized clothing costs more to make, and being overweight is not necessarily disabling.  Compare that to food preparation--if gluten-free food does not cost more to make, but costs more perhaps because it is not made as frequently, then charging more would be discriminatory.

Basic Advice 101 on avoiding an ADA lawsuit: do not single out disabled customers.  Or, per the advice of Dallas attorney Richard Hunt, an ADA expert, P.F. Chang's executives should have asked themselves how they would have treated their mothers.  "Mom, I know you have celiac disease, and you are required to choose gluten-free food.  Fortunately, we have a gluten-free menu; unfortunately, you must pay extra."

The general argument regarding discriminatory pricing is, if you offer for all (food), charge prices that do not single out a disabling condition.