Apathy and Neglect Should Not be Given a Pass

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.

6 thoughts on “Apathy and Neglect Should Not be Given a Pass

  1. vince parra Reply

    Need more info on how to go about filing against businesses that are not confirming.

  2. Rebekah Polanchak Reply

    I enjoyed reading this article. Where I work sometimes the Disabled Parking Spaces Gill up quickly and there is no where for me to park. I brought it to the attention of the Disability Awareness Committee where I work, but they keep telling me that the building’s parking structure where I work has met the ADA requirements for Number of Spaces needed. Hoever, I was told that one of the building’s occupants took away four (4) ADA parking Spaces in the basement level for use of their fleet of vehicles. Some of these spots go unused. How can I get an independent party to come and check if the building where I work is actually in compliance OR not? Also we het visitors to our offices all the time. The management tells us if there are no ADA parking Spaces left Just park in a Visitor spot. However, I have a scooter which I need to use at Times because of my difficulty in walking and those Visitor spots are normally tight and it makes it hard for me to get in and out of my car. I also was told park higher up and as close to elevator as possible, but top level has no elevator and 3rd and 4th levels have zero ADA Spaces. Plus it is more difficult for me to keep going around and around in the parking structure when I have a problem with my neck as well as my knees and feet. I feel sometimes like my employer doesn’t Care about my needs as a Disabled person. Because the management doesn’t have difficulty walking, etc. They ignore my needs because it is not a concern to Them because they don’t have the difficulty getting around like I do. The building where I work has two employers – State Fund and Caltrans. Can you call me to set up An inspection of the parking structure and the Number of ADA parking Spaces available. Sometimes the availabilty fluctuates by time of day and OR time of years and of there are people with temporary Disability placards. Thanks for any assistance you can give.

  3. Ellen Buckingham Reply

    Hertz rental car at 5520 Scotts Valley Drive in Scotts Valley, CA placed a burlap sack over the disabled parking sign after they paved the area and restriped it and have parked their rental cars in that spot on nearly a daily basis ever since. Do you think the police department would issue an citation? As ususal the answer is no.

    • Mark Potter Post authorReply

      This sounds like a great case. We have handled several cases against rental car companies who have practices of parking rental cars in their designated accessible parking spaces.

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