“Defendants cannot guarantee that an individual employee will not act inappropriately in a particular instance. However, under the ADA, Defendants can and must ensure that they adopt the proper policies and procedures to train their employees on dealing with disabled individuals and make reasonable efforts to ensure that those policies and procedures are properly carried out and enforced.”
Stan v. Wal-Mart Stores, Inc., 111 F. Supp. 2d 119, 127 (N.D.N.Y. 2000).
While most ADA and FHA litigation focuses on physical accessibility, this and other cases show that policies and procedures matter as well. In Stan v. Wal-Mart the defendant won precisely because it had the necessary policies and procedures in place. A very recent case involving a pool lift, Womble v. MPH Investments of Mississippi, Inc., 2014 WL 3509813 (S.D. Miss. 2014) shows how a defendant can lose, at least at the summary judgment stage, when there is no such policy. A case concerning a broken lift was allowed to go forward because the defendant couldn’t show it had a policy in place to maintain the pool lift and familiarize its employees with how it worked.
For Wal-Mart, creating the perfect policy just requires a memo to its internal legal staff. Smaller businesses may chose to resort to the internet. Policies for dealing with service dogs, policies for dealing with those who are hearing-impaired, and so on are all readily available. Unfortunately, these one size fits all policies are often hard to use and inappropriate because they don’t address the specific needs of an individual business and may be written more to scold employees than to tell them what to do. The best solution is to hire a lawyer to create a policy that is customized for your business and business needs. If you can’t afford that, or want to make sure the policy you have in place will serve its purpose, at least think about what a good policy for your business will look like.
First, a good policy should state briefly but clearly that is the intention of the business to comply with the ADA and FHA. This is not for you or your employees. After all, you already know you intend to comply with the law and you’ve already told your employees to comply. This statement is for the judge will read this policy if you get sued. You keep it short because a broad statement of intent really isn’t helpful to your employees and the policy needs to focus on what helps them comply with the law. An ADA or FHA policy should give your employees the tools they need to comply with the law, not scold them about the importance of being sensitive to the needs of those with disabilities or the importance of equal access.
Second, briefly explain in plain English what the law requires. Neither the ADA nor the regulations implementing ABA are written to be understood by ordinary human beings. If your policy uses statutory language, you will have to explain what that language means, which just makes the policy longer and more difficult to understand. For example, a policy for a restaurant might say: “The ADA requires that guests with disabilities be given the same quality service as all other guests. This means they must be given equal access to the same locations and types of seating as non-disabled guests, be seated in the same order as other guests, and be waited on and served in the same order as other guests.”
Third, tell your employees as precisely as you can what they can and cannot do or say. The first contact between your company and a disabled person will probably be an employee in a position where there is high turnover and a relatively low level of training. Your best employees can figure out what to do based on general instructions, but many of your employees will need the help of specific directions. A few examples of the kind of directions you might give are: “Guests in wheelchairs may not be seated at tables that ordinary customers regard as less desirable, such as those near the kitchen or a wait station, when a better table is available.” The more specific the instructions are the less likely it is that your employees will make mistakes based on their own misconceptions about what should be done. At the same time, remember that the more specific your instructions, the more carefully you have to think about what the law requires.
As always, the best approach is hire a lawyer who can help you understand what the ADA requires and create a policy customized for your situation that your employees can understand and follow. If you can’t afford that, then finding a policy on the internet may be a good starting point, but remember that a good policy isn’t just a list of nice-sounding aspirations or a copy of words from the regulations, but instead a list of specific guidelines that will help your employees follow the law.
