When we hear the word “discrimination,” we often think of intentional mistreatment of persons because of some personal characteristic. The classic line, “your kind ain’t welcome here,” mumbled over a dirty toothpick springs to mind as the archetype of discriminatory lingo. And while this type of discriminatory behavior is loathsome enough, there are other types of discrimination we should be aware of. Under the Americans with Disabilities Act, it is deemed an act of discrimination to fail to take steps to ensure that persons with disabilities enjoy physical access to facilities. And this type of discrimination—failure to ensure access—is often the result of apathy and neglect. A perfect example of this is found in parking lots. Everyone is aware that parking lots must have a certain number of accessible parking stalls, reserved for persons with disabilities by the iconic blue and white striping. Yet, our office gets more complaints about non-compliant parking lots than any other single issue.
There are a couple of reasons for this. First, parking lots are the first facility that we use when visiting a business. Any lack of accessibility with the parking is obvious and immediate. Second, parking lots are unique. Under the hot California sun, the paint and the surface of asphalt lots wear away every few years. A business can have a compliant and accessible parking lot in one year and yet be completely non-compliant the next. We often hear the lament, “the handicap parking spaces just faded away and I did not notice.” Now, under the law, this is not a legitimate defense. But, aside from the legal question, should we cut the hapless business owner a break because his discriminatory behavior was the result of neglect and apathy rather than malicious conduct? We don’t think so. It is a question that attorneys in our office have grappled with over the years. Here is our thinking. First, although neglect and apathy are less odious than malicious ill-will, the result is the same: a person is denied access and excluded from participation. Second, it is very difficult to verify the truthfulness of the claim. Did the business owner truly not realize that this accessible parking had faded to oblivion or did the business/property owner just not care to make the calls and spend the money to restripe the spaces? Third, the monetary recover in these cases are modest anyway. The law sets certain statutory penalties—such as $1,000—for a violation. Thus, the law already treats these cases as much, much different than discriminatory-animus cases. Finally, and most importantly, you know that a business owner is well-aware and up-to-date on all the issues that affect the bottom line. There is no neglect or apathy going on with maximizing sales. It is human nature to neglect or care less about things that do not affect you personally. But . . . get sued and be compelled to pay a penalty (as well as your attorney’s fees) and you wake up quickly. That business owner is very unlikely to adopt a neglectful and apathetic attitude toward compliance with the Americans with Disabilities Act going forward into the future. This has tremendous value. Not only does the particular business/property that is sued come into compliance but in many cases, that business/business owners/property owners have other properties and business and they rush to evaluate for compliance. That just does not happen with a stern letter or verbal complaint.
Lawsuits have real impact. Apathy and neglect should not be given a pass. Discrimination is discrimination and our office has focused on rooting it out for more than twenty years.