Unequal Treatment 2One of the hardest things for ordinary people to understand about the ADA and FHA is that these statutes, which supposedly forbid discrimination, make it unlawful to treat everyone equally.  To avoid “discrimination” under the disability related provisions of these laws businesses must give special treatment to those with disabilities.

This happens in two ways. One is the requirement that businesses and multi-family housing owners make their premises accessible to those with disabilities. This imposes a cost on business, and generates a lot of litigation, but most businesses at least understand the rules. The accessibility standards under the ADA and FHA are really nothing more than a building code, and that code increasingly matches the building codes of major cities and town. Build it the way the code requires and the statutes are satisfied.

The real problem for business comes when the ADA and FHA require an equal opportunity to enjoy the goods or services of that business. When a disability makes it difficult for a disabled individual to buy or enjoy goods and services, the disabled individual is entitled to a “reasonable accommodation:” that is, special treatment.

The requirement of reasonable accommodation is hard to implement because of the wide range of conditions recognized as disabilities, and because each kind of disability requires a unique accommodation. Equally important, not all individuals with a single kind of disability are equally disabled. The category “hearing disability” covers everyone from those who need hearing aids to those who are profoundly deaf and cannot hear any sound at all. There is often an equally wide range of adjustments made by those with a disability. Individuals with a hearing disability may have hearing aids, or use American Sign Language, or be expert lip readers, or have no training at all. Each will require a different accommodation.

The result is that when a disabled individual demands a reasonable accommodation of some kind there is no one size fits all accommodation. It would take a big book to cover all the possible accommodations, and the odds of successfully training the relevant staff members to cover every contingency would be very small.

This technical problem is accompanied by an even bigger conceptual problem. Most Americans understand that everyone is entitled to equal treatment. Racism and other kinds irrational discrimination persist, but notion that fair play means everyone gets the same treatment runs deep in American culture. It therefore strikes many people as inherently unfair when a disabled person asks for a reasonable accommodation, whether it comes in the form of wanting to take a service dog into a restaurant or wanting  additional time to take a standardized test. When this happens those who are not disabled are very likely to believe that they are victims of discrimination because they were not treated equally, even though this disabled individual asks only for what the law allows.

Businesses interested in ADA and FHA compliance need to recognize that despite the general prohibition against discrimination, the portions of the ADA and FHA dealing with access for the disabled are in fact affirmative action programs. They require unequal treatment in order to create equality of access with respect to the goods or services offered. When a business and its employees focus on equality of access instead of equality of treatment the requirement of reasonable accommodation begins to make sense, and when a law makes sense, it is much easier to figure out how to follow it. The ADA and FHA encourage discrimination rather than forbid it, and once a business understands that it will have a better chance of following the law.