The Americans with Disabilities Act

Will your ski school staff be required to communicate with a hearing-impaired skier using American Sign Language? Will you be required to make your trail markers visible to skiers with vision impairments? Do you know the essential functions that an instructor, a lift operator, or a waitress perform, and how you would accommodate an employee with a disability?

If you are not sure of the answers to these questions, you need to know more about the Americans with Disabilities Act (ADA). As the effective date of the ADA approaches, each resort will have to review its facilities and its personnel policies with the help of experienced counsel and develop its own compliance plan.

Signed by President Bush in July 1990, the ADA is a civil rights law that outlaws discrimination on the basis of disability in employment, transportation, public accommodations, and public services. Two portions of the ADA are of particular concern to ski area managers: Title I, which outlaws discrimination by employers on the basis of disability, and Title III, which outlaws discrimination by places of public accommodation, a category that includes all places of exercise or recreation.

Title I takes effect next summer, in July 1992. Title III takes effect in two stages. Resorts must comply with the requirements relating to existing facilities on January 26, 1992, while the provisions relating to new facilities take effect one year later, in January 1993.

Failure to comply with the ADA can expose a resort to significant liability. A resort that violates the prohibition against discrimination in employment may be held liable for compensatory damages and for punitive damages in amounts ranging from $100,000 to $300,000, depending on the number of the resort’s employees. Violations of Title III, the public accommodations requirements, can expose a resort to injunctive relief and civil penalties of up to $50,000 for a first violation and $100,000 for any subsequent violation.

Over the last ten years, many states have enacted laws that prohibit some forms of discrimination against persons with disabilities. However, these state laws vary widely in their scope and requirements. Thus, even if a resort is in compliance with state law, it may not comply with the new federal law.

The goal of the ADA is to integrate the disabled into the mainstream of American life. Congressional hearings revealed that Americans with disabilities experience high levels of unemployment and, because physical and communication barriers impede access to places of public accommodation such as stores, restaurants, and movie theatres, the disabled often lead isolated lives.

Although few would argue with the goal of the ADA, business people have legitimate concerns about the cost of compliance and their exposure to liability. The ADA is the kind of law businesses hate because its requirements are so vague. The Equal Employment Opportunity Commission and the Department of Justice have published extensive regulations to implement the ADA, but these regulations largely restate the law’s generalizations. This means many crucial questions are not answered and must be decided by the courts.

For example, as discussed below, a resort’s obligation to make its facilities accessible to the disabled depends heavily on two critical terms: “readily achievable” and “undue burden.” Neither the ADA itself nor the Justice Department’s regulations really define these terms; instead, they provide standards by which a resort (and the courts) must evaluate a particular action to determine if it is “readily achievable” or would impose an “undue burden.” These standards include factors such as the cost of the action and the financial resources of the resort.

Had Karl Marx written the ADA, he might have said “from each resort according to its abilities.” For better or worse, there is no uniform standard for compliance with the ADA. Each resort has different facilities and resources, and each will have different compliance responsibilities.

While the undue burden and readily achievable tests are fuzzy and make for uncertainty, it is important to consider the alternative. These tests were included in the law to ensure that the courts would consider the cost of compliance. If the ADA flatly banned discrimination on the basis of disability in public accommodation, as the Civil Rights Act of 1964 bans discrimination on the basis of race in public accommodation, then resorts would be forced to remove physical barriers whatever the cost.

Given the ADA’s lack of specific rules, each resort needs to review its physical facilities and personnel practices with the help of experienced counsel and develop an individualized compliance plan.

Who Is Protected by the ADA?

When people hear the word “disabled,” their first reaction is to think of a person in a wheelchair or one who is blind. Wheelchair users and persons with vision impairments are persons with disabilities, but the class of persons protected by the ADA is far broader.

A person is considered to have a disability if he or she meets any one of the following tests: 1) Has a physical or mental impairment that substantially limits that person in some major life activity, such as walking, working, seeing, hearing, or caring for one’s self; 2) Has a record of such a physical or mental impairment; or 3) Is regarded as having such an impairment.

This definition covers persons with all sorts of physiological, mental, and psychological disorders. It also covers a broad range of contagious and noncontagious diseases and conditions, including HIV disease, drug addiction, and alcoholism.

Employment

Effective July 26, 1992, all resorts that employ 25 or more persons for at least 20 calendar weeks per year are prohibited from discriminating on the basis of disability against a “qualified individual with a disability” in recruitment, hiring, promotion, compensation, or benefits.

A qualified individual with a disability is one who satisfies the skill, experience and job-related requirements of the position and who, with or without “reasonable accommodation,” can perform the “essential functions” of the position.

The ADA will not require a resort to lower its standards and hire someone who is not qualified to do the job. On the other hand, an individual with a disability cannot be turned down because he or she cannot perform tasks that are marginal to the position. The law does not specifically require employers to develop written job descriptions, but job descriptions are crucial to identifying the essential functions of a particular position.

Employers must also make reasonable accommodation to the known physical or mental limitations of an individual who is otherwise qualified for a position, unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of its business.

Reasonable accommodation can take many forms. It may mean restructuring a job, modifying work schedules, providing special assistive devices, such as telephone amplifiers, or making existing work areas accessible to employees with disabilities.

An employer is not required to make an accommodation if doing so would impose a significant difficulty or expense. This determination must be made on a case-by-case basis taking into consideration factors such as the cost of the accommodation and the financial resources of the resort.

The ADA also limits the types of questions that employers can ask job applicants and restricts the use of employment tests and physical examinations.

Employers have to walk a fine line when dealing with individuals who abuse alcohol or who have used illegal drugs. Drug addiction and alcoholism are disabilities under the ADA. An employer cannot discriminate against a drug addict who has successfully completed a supervised drug rehabilitation program. However, a person who is currently using illegal drugs is not protected by the law. Similarly, a resort cannot refuse to hire a person because he or she is an alcoholic. However, a resort may make and enforce rules relating to the use of alcohol, such as forbidding drinking on the job.

Public Accommodations

Ski areas are also subject to Title III of the ADA, which prohibits discrimination on the basis of disability by places of public accommodation. Under Title III, the focus is on the ski area’s facilities. The ADA applies to all facilities, including lifts and slopes, lodging, shops, restaurants, health club, ski school, and parking areas.

Individuals with hearing, vision, mobility, or mental disabilities must be able to get into and use the resort’s facilities. The disabled cannot be turned away because of generalizations about their ability, concerns about their safety, or restrictions imposed by liability insurers.

The basic rule of Title III is that a resort may not discriminate against a person with a disability on the basis of his or her disability. In other words, individuals with disabilities must have an opportunity to use and enjoy the resort’s facilities. The law does not require that the disabled obtain the same result as able-bodied visitors. For example, a paraplegic skier may not be able to ski every expert slope, but he or she must have the opportunity to use at least some of the slopes.

Title III also prohibits segregating individuals with disabilities. For example, a resort cannot restrict vision-impaired skiers to designated slopes, or require all hearing-impaired skiers to attend lessons for the hearing-impaired.

The ADA balances the needs of individuals with disabilities against the ability of businesses to pay the cost of providing access by treating existing facilities differently from new facilities. Since it is cheaper to include accessible features when a facility is first designed than to add them later, new facilities — those designed for first use or occupancy after January 26, 1993 — are held to a higher standard of accessibility than existing facilities. Thus, if a resort is planning to build a new lodge, it must be sure that the lodge’s entrance, reception area, rooms, and restaurants comply with new federal accessibility standards.

In existing facilities, the requirement to provide accessibility is qualified by two vague but important standards. First, a resort must remove architectural barriers (doors, stairs, and protruding objects) and communication barriers that are structural in nature to the extent such removal is “readily achievable.” Readily achievable means easily accomplishable without much difficulty or expense.

Second, resorts are required to provide auxiliary aids and devices — for example, Braille materials, videotext displays, or sign language interpreters — when necessary to make their facilities accessible, unless doing so constitutes an “undue burden,” which is defined as significant difficulty or expense.

Conclusion

The ADA has been called an Emancipation Proclamation for the disabled. Integrating individuals with disabilities into the mainstream of American life is an important and worthwhile goal. Unfortunately, the law is complex and full of ambiguity. With the effective dates fast approaching, resort managers need to take a careful look at their employment practices and physical facilities to ensure that they will be in compliance.

Anne Wallace is an attorney with the law firm of Arnold & Porter, Washington, D.C. She recently authored a feature on ADA compliance for a major banking publication.