Originally published in June 2021.
Today we’re going to talk about how dealers should address the Americans With Disabilities Act.
Today’s topic is prompted by an email message we received from a client dealer who asked if we could create training content addressing the Americans With Disabilities Act. We will, but wanted to respond immediately, which is why we’re providing this particular segment.
Origins of The Americans with Disabilities Act
The Americans with Disabilities Act – ADA for short – was passed in 1990. As a second-year law student interning on Capitol Hill, I actually attended the first Senate Committee hearing on this legislation in 1987. The Senator presiding over the hearing was Ted Kennedy, and the first witness was his son, Ted, Jr., who had his right leg amputated due to cancer when he was 12.
In broad terms, the ADA prohibits discrimination based on actual or perceived disabilities. It applies to dealerships in two main areas: employment and as a “Public Accommodation.” We’ll deal with employment first.
Dealerships and the ADA
Dealerships are prohibited from disability discrimination in hiring, promotions, training, and other privileges of employment. In the course of hiring, it prohibits questions about an applicant’s disability. Does this mean you must hire disabled employees for any position? Not necessarily. Rather, you’re required to make a “reasonable accommodation” for the known physical or mental limitations of an otherwise qualified individual unless it would create an undue hardship.
Reasonable Accommodation & Undue Hardship
What’s a “reasonable accommodation?” And what constitutes an “undue hardship?” A dealership was recently sued when one of its employees was diagnosed with cancer. A reasonable accommodation would be to allow her unpaid days off when she needed to go to her chemo treatments once a month. Giving her the time off was not considered an undue hardship. But the devil is in the details, and that’s why you have local counsel to consult when these questions come up.
The second area of responsibility flows from dealerships’ status as public accommodations. This means that you must remove barriers to access for people with disabilities at your dealerships. Because the ADA has been the law of the land for over 30 years, most dealership facilities have access ramps for people in wheelchairs, lowered urinals and sinks in the restrooms, and braille signage on the walls.
But what about hand controls for disabled customers who want to test drive a vehicle? There is Department of Justice guidance on that exact question from 1994, and it suggests installing those controls would not be an undue burden. If you want to read that document – and you should - you may access it through the URL on your screen.
Your Dealership's Website
I’ll end with one current ADA hot button – your dealership’s website. There is case law that holds websites are included within the definition of public accommodation. This means, at a minimum, that your website should be compatible with assistive software, such as screen readers that assist blind people. This is a very, very big issue – all I want to do today is make you aware of it and suggest you have your IT staff or outside IT consultant audit your website for accessibility. Suing companies for non-ADA-compliant websites is a cottage industry, and you don’t want to get caught up in one of those lawsuits.
And if you have a question you’d like to see addressed in a future episode, send me an email. You never know.