"Public accommodations must comply with basic nondiscrimination requirements that prohibit exclusion, segregation, and unequal treatment. They also must comply with specific requirements related to architectural standards for new and altered buildings; reasonable modifications to policies, practices, and procedures; effective communication with people with hearing, vision, or speech disabilities; and other access requirements. Additionally, public accommodations must remove barriers in existing buildings where it is easy to do so without much difficulty or expense, given the public accommodation's resources." - Americans with Disabilities Act (ADA).
By Christine Pafumi
4/23/10
Twenty years after the ADA was passed, many businesses in Boston are still struggling with accessibility. One major reason for this is money. Even "reasonable" modifications and minimum requirements to barriers have a dollar amount. In a tough economy, barriers to access in businesses can often be directly related to access to money.
"I think that because the economy is bad and people, even people of good will who want other people to be healthy, are concerned about their own financial stability and as a result I think there is a tremendous resistance to making things accessible," said Karen Schneiderman, community organizer at the Boston Center for Independent Living (BCIL).
While some cities are still trying to figure out the best way to enforce accessibility to everyone everywhere, Cambridge has taken an innovative approach through two programs, its Human Rights Ordinance and the Façade Improvement Program
Michael Muehe refers to the programs as the "carrot and the stick." He wears two hats as the Executive Director of the Cambridge Commission for Persons with Disabilities and the ADA Coordinator for the City of Cambridge.
With the Façade Improvement Program, Cambridge has implemented a way to provide financial relief to businesses who want to have a more enticing storefront and also be accessible, but simply do not have the financial means to do so.
"One of the conditions of the program is if your business is not already accessible to people with disabilities you have to make the business accessible as a condition of getting the grant," said Muehe. "So it's a carrot. It's a win-win situation. You get money to improve your façade, to spruce up your storefront and as a bonus we get access. Where a business might not have been accessible before now it's made accessible. So everyone's happy we like to think."
The program, operated by the Community Development Department, is available to almost any Cambridge storefront business and provides a matching, dollar for-dollar grant of up to $15,000.
But Muehe noted that not every storeowner takes advantage of the program.
'Sometimes it's hard to get a business owner's attention, especially a small mom-and-pop business. They're so busy just stocking the shelves or putting food on the table that they don't really have a whole lot of time for someone from the city coming in and talking to them about this great program that we have," said Muehe. "It's not mandatory and so there have been a lot of business that are aware of the program but choose not to."
With costs of accessibility playing a key factor in compliance, enforcement is essential."The problem with Title III frankly is that the enforcement relies on an individual with a disability filing a complaint," said Muehe. This requires either filing a complaint with the US Dept. of Justice in Washington DC or filing a federal lawsuit.
"The problem with filing a complaint in Washington DC is they get way more complaints than they can deal with and they only have really a handful of attorneys for the entire country to investigate these complaints," said Muehe. "They do not really investigate every complaint that they get. So a lot of these complaints go unanswered."
Many cities in Massachusetts have a human rights ordinance but Cambridge has added a new provision to its law to specifically deal with this issue.
"We want to take a broader approach with our human rights ordinance and say any business that is a public accommodation needs to comply with the readily achievable barrier removal requirement," said Muehe. "They are already required to do it in the ADA. We are not requiring them to do anything additional. All we're doing is folding that language into our local ordinance so that we have a local enforcement mechanism. We are pretty pleased about that."
The Cambridge Human Rights Ordinance bars discrimination on the basis of 12 protected categories. Disability is one of those categories. The City Council passed the amendment to the rights ordinance that contains almost identical language to Title III of the ADA. If a person with a disability feels that a business in Cambridge is not doing what it is supposed to under the law, that person can file a complaint with the Justice Department in DC but also with the Human Rights Commission in Cambridge that has a staff that can conduct investigations and followup to resolve complaints.
"Public accommodations is a big problem because the ADA basically made the protected class of oppressed people be the enforcers for their own civil rights and that's pretty cruel, frankly," said John Kelly, a Boston resident who uses a wheelchair. "Small businesses have been shown time and again not to even take incentives to make themselves accessible because they've been told or learn that unless you're sued, you're fine. So if the penalty for not having yourself be accessible is that you have to become accessible, well then there's no cost to not obeying the law."
Although money can play a major role in keeping barriers to businesses in place, it is not the only factor.
"Unfortunately, a lot of businesses, particularly older businesses that have been around for a while, they have it in their heads somehow that 'Well, I've got an old building I'm grandfathered in.' We hear that a lot, 'Oh, we're grandfathered.' We have to tell people there's no grandfather clause in the ADA," Muehe said. "If there's a barrier that exists to your business and it's readily achievable to remove that barrier you have to do it."
Although the ADA has been around for 20 years, some businesses have been around for much longer so the concept of accessibility is still new.
"It's something that really drives people with disabilities crazy because like the Cambridge ordinance, they could do it with not a lot of money," said Kelly. "We're not talking about eight steps down on Newbury Street; we're not trying to get there. We're trying to get into the one-step places and there are a lot of them."
Programs like Cambridge's Façade Improvement Program and Human Rights Ordinance are helping to make progress in terms of better accessibility for people with disabilities. But advocates for the disabled point out there is still a long way to go until every business is completely accessible.
"Like other civil rights movements. I think this one is coming along, but I think because it involves money it's more complicated," said Schneiderman. "To let somebody sit beside you on the bus requires you to be a decent human being. But to spend the money to fix your building requires you to be a decent human being and come up with the money. It still has to be done, so I would say it's not. Things aren't great, but there's a mechanism in place for having it done."
"Title III covers businesses and nonprofit service providers that are public accommodations, privately operated entities offering certain types of courses and examinations, privately operated transportation, and commercial facilities. Public accommodations are private entities who own, lease, lease to, or operate facilities such as restaurants, retail stores, hotels, movie theaters, private schools, convention centers, doctors' offices, homeless shelters, transportation depots, zoos, funeral homes, day care centers, and recreation facilities including sports stadiums and fitness clubs. Transportation services provided by private entities are also covered by Title III" ADA.