Thursday, July 29, 2010

From the "You Just Can't Make This Stuff Up" File: ADA vs. Chipotle; Happy 20th Birthday ADA

Washington Examiner, Investor's Business Daily, Cato InstituteSan Francisco Chronicle, and Reason.

"The 9th U.S. Circuit Court of Appeals ruled this week that customers in wheelchairs are being denied the full "Chipotle experience" of watching their food being prepared because Chipotle's 45-inch counters are too high."

69 Comments:

At 7/29/2010 10:35 PM, Blogger Jason K said...

Just reading that makes my head hurt.

 
At 7/29/2010 10:43 PM, Blogger Milton Recht said...

Mirrors or closed circuit tv camera and monitor. A lot cheaper than rebuilding the counters.

 
At 7/30/2010 12:13 AM, Blogger Cabodog said...

This is getting ridiculous.

Our town is nearing bankruptcy just trying to comply with the rebuilding of sidewalks and parking spaces in an attempt to comply with ADA.

 
At 7/30/2010 6:23 AM, Blogger JMG said...

Whenever I went to the USA I noticed that customers were denied the right of eating properly cooked food. All the more so when there is no really choice: restaurants are of the Scylla or the Carybdis variety. I think this situation cries for a ruling.

 
At 7/30/2010 7:43 AM, Blogger Anonymous Bosh said...

Actually, it's more of a "rational actor" or "markets in everything" article. A fuller explanation is here:
http://www.cato-at-liberty.org/2010/07/29/ada-and-the-chipotle-experience/

which quotes from the original ruling (WORTH READING!):

The [district] court found that [wheelchair-using complainant] Antoninetti had failed to show irreparable injury because he had not revisited either restaurant after Chipotle adopted its written policy and because his “purported desire to return to the Restaurants is neither concrete nor sincere or supported by the facts.” It also stated that Antoninetti’s “history as a plaintiff in accessibility litigation supports this Court’s finding that his purported desire to return to the Restaurants is not sincere. Since immigrating to the United States in 1991, Plaintiff has sued over twenty business entities for alleged accessibility violations, and, in all (but one) of those cases, he never returned to the establishment he sued after settling the case and obtaining a cash payment.”

 
At 7/30/2010 7:57 AM, Blogger Don Culo said...

^^^^^^^^^^^^^^^^^^^
Let's not forget all the lawyers who were more than happy to file the many lawsuits for Mr. Antoninett

 
At 7/30/2010 8:02 AM, Blogger Don Culo said...

As a phenomenon, the ADA filing mill has much in common with other forms of baleful legal “entrepreneurship” such as patent trollery, mass “citizen suit” filings against small businesses and school districts over paperwork lapses, and — the most recent to emerge — copyright mills such as the recently formed RightHaven, which has begun to acquire the rights to old newspaper articles and then mass-file lawsuits demanding thousands of dollars from bloggers, mom and pop businesses, and others who’ve ill-advisedly reprinted the articles online without permission.

**********************

See you in court Carpe Diem

 
At 7/30/2010 11:35 AM, Blogger Walt G. said...

There's quite a spin on this story's comments. From the actual ruling: "[9] In sum, Chipotle’s treatment of Antoninetti during his visits as a customer of the two restaurants violated the Disabilities Act, because it did not comply with the Guidelines."


Why do you guys have a problem with the guts of the ruling above? The guideline height is 36" if built after 1/26/1993, and these locations were built after that at 45". As someone who deals with compliance regulations every day, that is really a clear-cut violation. Are you going to take the restaurant’s side and then complain when your air conditioner burns up because I did not follow the proper spacing code of 48" between units when I installed it? You can't have it both ways. How about if I demand an "A" in a class with a score of 60% when the syllabus says 90%? A nine-inch “mistake” is a huge violation of the ADA, and you don’t get to pick which laws you want to obey.

 
At 7/30/2010 11:57 AM, Blogger Benjamin said...

I know there are some things you cannot do in America.
One is to say you hate all the ADA compliance regs for a few people in wheelchairs, and the other is to say we are wasting way too much money on a coprolitic and parasitic military. Farmers are usually off-limits too.

 
At 7/30/2010 12:50 PM, Blogger Bruce Hall said...

It seems as if the 9th Court should have also considered the "Chipotle experience" being denied the blind who could not see the ingredients and the deaf who could not hear the sounds associated with the food preparation.

Just another example of wealth redistribution... from those who create wealth to those who find devious ways to take it [lawyers].

 
At 7/30/2010 12:56 PM, Blogger Walt G. said...

See pages 11 and 12 below. It seems pretty clear to me, but maybe I missed something. I am sure someone will point out my mistake(s) :)

ADA

 
At 7/30/2010 1:05 PM, Blogger James said...

This comment has been removed by the author.

 
At 7/30/2010 2:10 PM, Blogger Junkyard_hawg1985 said...

Walt, As I read the complaint, it looks like the lawsuit was filed because the person could not watch their food be prepared. The link you provided said serving counter couldn't be above 36" tall. I don't think the issue was with the serving counter - they indeed met the 36" requirement. This issue was with other portions of the design which prevented the diabled from seeing the food. Chipotle had a policy to allow people who could not see the food to still taste samples.

As I see it, it is a lawsuit based on poor legislation that called it "reasonable accomodations." I think Chipotle was reasonable. I think the lawsuit was unreasonable.

 
At 7/30/2010 2:32 PM, Blogger juandos said...

"Why do you guys have a problem with the guts of the ruling above? The guideline height is 36" if built after 1/26/1993, and these locations were built after that at 45"."...

Well its simple Walt G, what part of the 'original' Constitution or the Bill of Rights mandates federal interference in how a resturant is built and run?

 
At 7/30/2010 2:53 PM, Blogger Rand said...

I recommend the following accommodation:

The plaintiff (and his lawyer) shall be taken to the nearest Chipotle Restaurant. Upon arrival, a rope shall be placed around their necks. They shall then be lifted by said rope to a sufficient height to observe the activity. After five minutes, they shall be lowered to the floor.

 
At 7/30/2010 4:08 PM, Blogger Walt G. said...

Juandos,

Didn't say I agreed with the law, just said it is what it is. And it is pretty clear. I don't like speed limit signs, but I know why I get a ticket for doing 70 in a 50.

Junkyard_hawg1985: The mistake was advertising that EVERYONE could enjoy seeing their food being prepared, and the disabled are considered an everyone by the ADA. Chipotles can't treat the disabled differently than those who are not disabled. The height was mentioned in the ruling , too.
Ruling

A good builder with a cheap tape measure, and a lawyer should have advised Chipotle not to make statements they could not keep. That would have been much cheaper than the lawsuit.

 
At 7/30/2010 4:27 PM, Blogger Jason said...

Walt, clearly you know your ADA. And I have to respect you because you admit you don't have to like the law, but still have to follow it.

I have issues with this from the unintended consequences point of view, Was this clown's rights violated because he wasn't treated exactly like everyone else? Really? Was this the purpose of the law? I this must should serve as an example to legislators regarding the (unintended) power they have.

 
At 7/30/2010 4:40 PM, Blogger Walt G. said...

Jason,

I have to work with the ADA as a pipefitter/plumber, and I teach a Michigan mechanical code class. In addition, I handle government compliance reporting at GM. There are a lot of codes/rules/regulations I don't like or understand :)

This isn't about just this "clown." This is about guys like me reading the ruling and deciding to follow the codes so that all disabled people can live better lives. You know there is a good chance we will all be disabled someday. How will you want to be treated if that happens?

The demographics show a huge trend toward an aging U.S. population. How are we going to handle say 25% of our people in wheelchairs?

 
At 7/30/2010 5:29 PM, Blogger Jason said...

Walt, life isn't fair, And the quest door fairness is a fool's errand.

If someday I complain because in my wheelchair I cannot see how my fajita burrito is being prepared and sue because others who can still walk can see, the shoot me and kill me. This is because I will have become an angry and petty human being, who demands equal quality of life at the expense of others, when clearly my situation is not equal.

Look, was this guy denied entry to chipotle because of his wheelchair? No.

Was this guy denied menu choices because of his wheelchair? No.

Did he have to eat his burrito somewhere else? NO!

He couldn't see it being made. Repeat that. Because I don't believe anyone can call that harm and not laugh.

If you talked about wheelchair access to public transportation, or handicapped spots at a mall or elevator access you would have agreement from me. But this clown and his petty suffering is the wrong sword to die from with regard to is arguement.

 
At 7/30/2010 5:48 PM, Blogger JMG said...

If one needs a lawyer for checking the wording of an advertisement in a restaurant because common sense is not enough, clearly there's something wrong.

 
At 7/30/2010 6:51 PM, Blogger Jet Beagle said...

Walt G: "You know there is a good chance we will all be disabled someday. How will you want to be treated if that happens? "

You know what, Walt? I do have a pretty severe hearing disability, but I still feel the ADA is crap.

I understand why governments would require retail businesses to provide accessibility, but much of the bleeding-heart, government-intrusiveness I've seen as a result of this Act is not about accessibility. And I do have a right to argue, complain, raise hell, protest, or whatever you might wish to call my attempts to get this act modified.

 
At 7/30/2010 7:49 PM, Blogger Ron H. said...

Jet Beagle, you posted a response to Walt G. on another thread that I think you intended to to post here.


It's on the "Americans Cut Back on Visits to the Doctor, But Increase Visits to Retail Health Clinics by 36%" thread, and makes no sense there, but works really well here.

 
At 7/30/2010 9:17 PM, Blogger Smoky Mountain Hiker said...

I wonder what OSHA will have to say about Chipotle employees having to bend over to reach the low counter.....

 
At 7/30/2010 10:18 PM, Blogger Jet Beagle said...

Walt: "You know there is a good chance we will all be disabled someday. How will you want to be treated if that happens?"

You know, Walt, I have a lot of respect for what you write, but this preaching to us about the disabled is troubling.

Would you consider that the lawsuits this clown and his lawyers have filed do not benefit the diabled? Rather, they create a backlash which breeds resentment and suspicion toward other disabled persons, even on those occasions when the disabled persons really need help.

Would you also consider that when government tries to mandate away every piece of life unfairness, it rarely works?

I feel fairly confident in saying that the ADA, and opportunists such as this plaintiff, have reduced the hiring opportunities for some disabled folks. That might be a violation of the law, Walt. But when government interferes in markets and raises the cost of a good or service, the demand for that good or service will go down. And who can the disabled thank for that reduction in opportunities? The F***ing bleeding hearts.

 
At 7/30/2010 11:55 PM, Blogger Ron H. said...

"I wonder what OSHA will have to say about Chipotle employees having to bend over to reach the low counter....."

OSHA won't have anything to say that they haven't said already. The food prep counters in question are already at an ADA and OSHA compliant height, and service workers are already using them. The problem is a 45" wall that may prevent someone in a wheelchair from viewing said counter as their food is assembled, so they might be unable to appreciate the full "Chipotle Experience".

A 36" counter is not all that low. The counters in your kitchen are probably about that height. Unless you are extremely tall, this isn't likely uncomfortable for a person preparing food.


"...what part of the 'original' Constitution or the Bill of Rights mandates federal interference in how a restaurant is built and run?"

juandos, I had to wonder the same thing myself. Besides, in my opinion ADA has done way more harm than good to people with disabilities.

 
At 7/31/2010 12:37 AM, Blogger Ron H. said...

And yes, Walt, you DID misread something. All the counters in question are at an ADA compliant height. The problem in this case is that this customer's view from a wheel chair was blocked by a higher partition.

As you pointed out yourself, it is Chipotle's offer to everyone of a view of their food being prepared that caused them a problem in this case.

The ADA guide you link to is now incomplete. When you read page 12 which suggests that a business can offer an alternative accommodation, you should now read "alternative and equivalent". That "equivalent" experience was what the 9th CCOP decided was denied to Mr. Antoninetti due to his disablement.

 
At 7/31/2010 12:47 AM, Blogger Ron H. said...

Make that 9th CCOA

 
At 7/31/2010 12:59 AM, Blogger Andrew said...

This is the most blatant case of fraudulent advertising since my suit against the film, "The Never-Ending Story". - Lionel Hutz

 
At 7/31/2010 7:39 AM, Blogger juandos said...

"Didn't say I agreed with the law, just said it is what it is"...

Ahhh, the 'Nuremberg defense'...

"I don't like speed limit signs, but I know why I get a ticket for doing 70 in a 50"...

Well Walt G unlike the Constitutionally questionable ADA driving is a privilege that each state sets up for its citizens...

There is a time and a place to change those speeding laws (as there should be for ADA laws) and its called the voting booth...

Have politcos that pander to much to outfits like MADD, vote them out...

We here in Missouri will find out just how good the ballot might be come Tuesday, August 3...

Missouri on Tuesday will become the first state to the test the popularity of President Barack Obama's top policy accomplishment with a statewide ballot proposal attempting to reject its core mandate that most Americans have health insurance...

Personally after the debacle of the rightous Arizona immigration law injunction due to the supremacy clause I don't hold out much hope that regardless of how badly Missouri citizens don't want ObamaCare, the will of the people will be struck down because the Constitution says that the federal government can levy taxes...

 
At 7/31/2010 8:50 AM, Blogger Walt G. said...

I think you all missed the point that the disabled customer was not treated like the non-disabled customer (with some accommodations), and that’s the purpose and intent of the ADA. Any time a case goes beyond the district court (appeal, supreme . . .) it is not really about that individual anymore because it is about the law itself. Accordingly, it does not matter if this test case was filed by a clown.

I don't know how strict laws must be written, but I do write my representatives and let my opinion be heard. I've even gotten a few phone calls from congressmen (congress people?) and governors themselves. I always get a written response. If you have a problem with the ADA let it be known where it can do some good. Maybe they don't all read Carpe Diem :)

Ron H. Here it is. ADA Law
You are correct about the main issue, but you have to read the actual case I linked to earlier. The court used the 36" height as an expectation of the wall height to see the food being served as EVERYONE is supposed to according to the advertisement. From what I read, 36” wall—no case. Chipotle screwed themselves by that marketing angle by promising something they did not deliver. Chipotle does not have the 45” wall in all their restaurants, so it obviously can be done with no special accommodations that discriminate only against the disabled--and 44” tall people :)

I still say a good ADA builder and lawyer would have been cheaper (tape measure and disclaimer provided). You might not like our building codes, regulations, and laws, but you nevertheless are stuck with them. You are part of the process to change them by your votes and letting your voice be heard by writing your representatives. How many of you have done that this year or ever? You probably don’t want them only having my input when they make their decisions, do you :)

 
At 7/31/2010 10:30 AM, Blogger Walt G. said...

There is a period for public comment for proposed rule changes for ADA Internet access. Get involved now if you want input on those changes. Don't just complain later you do not like the rule.

ADA Proposed Changes for Internet access

 
At 7/31/2010 10:35 AM, Blogger Jason said...

Walt, I think we get what the ADA does. From my perspective this is a ludicrous law in that we cannot all be treated the same, because we are not all the same. But the real issue in this discussion is defining what is reasonable.

What is reasonable, exactly? Were the accomodations provided by Chipotle unreasonable? I dont think so. The 9th district court disagrees with me and thus the ruling. But this is not a surprise since the 9th court has a thought process all its own.

I believe, deep into the depths of my soul, there was no harm done here. And that only petty, self interested, anchors of society would believe there was harm done here. Treated the same or not. And this law that makes our court system define the minutia, the primordial slop of existence, such as this, is nuts.

I would write my congressman, but Gary Peters is a buffoon. So I won't waste my time.

 
At 7/31/2010 10:50 AM, Blogger juandos said...

"You might not like our building codes, regulations, and laws, but you nevertheless are stuck with them"...

Hmmm, still more of that 'Nuremberg defense' logic at work...

"There is a period for public comment for proposed rule changes..."...

Which was totally ignored by Democrats in the 101st Congress in 1989 when the original act was proposed...

 
At 7/31/2010 11:21 AM, Blogger Walt G. said...

Jason,
Run yourself or support someone else. I am working on our next governor's campaign myself. What is reasonable is what Chipotle did at all their other locations except those two. You can't say something can't be done when you have already done it more times than not. That's a weak bargaining position. I like it when others put themselves in that position. I like to win. It's clear that Chipotle discriminated/treated differently the disabled even between their own buildings.

Well, don't like the law? That's a whole different argument. I spend a lot of time on compliance issues (OSHA, EPA, DNR, internal policies, and . . .), so I might look at things differently than some of you. I worry more about compliance than fairness. I do understand where y'all are coming from though.

Juandos, more like logic. I like money. I want to keep money. Therefore, I don't violate laws that will cost me money. Ask yourself why Chipotle complied with the ADA in some new builds and not in those two (any reputable contractor is aware of the ADA laws, so ignorance of the ADA is not an excuse). Arrogance? Stupidity? Standing up for their rights? I wonder if the 45” wall is still there. If so, do you think it will be next year?

Democrats ignored? I thought Bush I and Bob Dole were Republicans :)

 
At 7/31/2010 11:34 AM, Blogger juandos said...

"Ask yourself why Chipotle complied with the ADA in some new builds"...

Sniveling cowardice Walt G, strictly sniveling cowardice...

"I thought Bush I and Bob Dole were Republicans :)"...

There's was a difference?...:-)

1989 was an interesting year, a year that even more reasons were found to extort more wealth from the citizens with Constitutionally questionable legislation...

I guess we're getting the government we deserve Walt G...

 
At 7/31/2010 12:03 PM, Blogger Ron H. said...

Jason said: - "The 9th district court disagrees with me and thus the ruling. But this is not a surprise since the 9th court has a thought process all its own."

Yes, they do seem to operate in an alternate universe, but on the positive side, they are the most frequently overturned appeals court in the country. I, like you, believe they got this one wrong.

I also believe that Mr. Antoninetti makes a good living suing for ADA violations then collecting damages in civil court. He has successfully sued 20 business in the past, and only once returned to a business to enjoy the improved access he asked for. I don't believe he has any interest in seeing his taco assembled.

"I would write my congressman, but Gary Peters is a buffoon. So I won't waste my time.

Jason, please don't give up on this. It's important to let your representatives know how you feel, even if they ignore you. I suffer the same frustration, as one of my senators is Barbara Boxer. I write to her frequently, and I always get nice form letters back that basically say: "Thanks for your input, but I'm going to vote the way I want to anyway."

 
At 7/31/2010 12:39 PM, Blogger juandos said...

Yet another ADA like example...

File this under 'blind adherence to rules set down by bureaucratic parasites'...

From Watts Up With That: EPA Rejects Petitions to Scuttle CO2 Rules

Can't get some piece of extortion through Congress, have a few 'bureaucratic parasites' work it out for you instead...

 
At 7/31/2010 1:07 PM, Blogger Ron H. said...

Something not being mentioned here is the fact that the 9th Circuit Court, in it's ruling, expanded the ADA definition of a service counter to include the one where food is prepared.

Yes, Chipotle brought this on themselves by offering everyone a view of this area, but the original definition of a service counter, as described in the 'ADA Guide For Small Businesses' that Walt G. thoughtfully provided, only includes counters where customers and servers interact, such as counters where money and food are exchanged. This is a stretch on the part of the court, and I believe it is wrong.

When these 2 restaurants were built, there was no reason to expect that someday the 9th Circuit Court would rule that other parts of the restaurant should be visible to those with disabilities, so there wasn't any reason to consider the 45" wall a barrier to disabled persons, nor a violation of ADA guidelines.

Those who have no problem with this ruling should not be surprised in the future to see a requirement that spectators at sporting events be restrained in their seats, so they can't leap to their feet to cheer their team, as this would block the view and thereby disadvantage those confined to wheelchairs.

Walt G., I did read the court ruling you linked to.

All I can say is if you honestly believe this ruling somehow improves the lives of disabled people or that the suit was anything but a pure shakedown of businesses, then you are truly naive.

See this for additional perspective.

 
At 7/31/2010 3:21 PM, Blogger Walt G. said...

Ron. H
I am not taking a position whether this improves anyone's life or not. I seek to understand how the court could rule this way whether I agree with the decision or not, and I can see why it went that way because the evidence shows Chipotle treats the disabled differently than the non-disabled even when they don't have to (whether it is technically a wall or counter is not really relevant). To win the case hands-down, Chipotle needed to show either the 45" wall height was necessary, the wall could not physically or safely be shorter, or a disabled person could in fact see their food being prepared just like everyone else; they did not do any of that.

When people go to court, someone usually gets a "shake down." No business is compliant to all the known and unknown rules and regulations. What businesses do is use risk analysis to see how much compliance will cost to how much it will take to be non-compliant in fines/lawsuits if they are caught. All large businesses have charts that show how much a finger, hand, arm, leg, eye . . . will cost them if an employee get injured or killed, and they make decisions using those numbers. I would like to see Chipotle’s analysis of whether to ADA comply or fight this case.

Union shops tend to try to force compliance even if it is not cost effective, but that can put them at a competitive disadvantage and out of business. I don’t know if it is better to have a job or a life. I guess we could ask some coal miner’s surviving spouse in my wife’s home state of West Virginia when we visit next month.

 
At 7/31/2010 5:44 PM, OpenID Sprewell said...

Fascinating City Journal article, Ron, this part was especially interesting:

The result has been to attract busy legal entrepreneurs such as Ted Omholt. By 2001, having finished his Hawaii spree, Omholt refocused his practice on the Bay Area and sent out the following form letter to local households with known wheelchair users:

I am the attorney (age 48) who for the past three years has had the privilege to represent a small action group of six wonderful individuals who use wheelchairs age 37 to 66. . . . Their shopping at inaccessible stores in San Francisco and then filing lawsuits as clients of mine against those inaccessible stores nets them each an income which makes them financially independent. For each of them, the lack of funds which used to limit them to life’s bare necessities and which plagues so many disabled individuals today has become only an unpleasant memory from the past. As a reward for implementing the law and making stores more accessible for other disabled shoppers, group members now use their stream of income to eat out at good restaurants when they want to, buy new clothes and computers and televisions and gifts for family members, travel and take vacations wherever and whenever they want to go, and live a lifestyle they could only imagine prior to joining the group. . . . The group has room for a small number of additional members. Once that small number of additional members has been selected, the group will again close to new members.

 
At 7/31/2010 6:05 PM, Blogger Ron H. said...

Sprewell said -

"Fascinating City Journal article, Ron, this part was especially interesting:"

Can't get much more obvious than that, now, can it?

 
At 8/01/2010 4:47 AM, Blogger Jet Beagle said...

Walt G: "Get involved now if you want input on those changes. Don't just complain later you do not like the rule."

The arrogance you are employing in preaching to others is surprising.

Citizens employ elected representatives to make our laws exactly because we each cannot hope to spend all our time reviewing the thousands of pages contained in the typical legislative document. We even fund large staffs for those representatives to ensure they have time to make sure we are represented.

Many provisions in the ADA were protested long and loud by conservative and by business leaders. But the f***ing bleeding hearts werelistened to by Congress and those provisions were included anyway.

The idea that one cannot protest what turns out to be bad legislation simply because one did not recognize it was bad legislation earlier is ... stupid. I don't use that term very often but it is appropriate in this case.

 
At 8/01/2010 9:28 AM, Blogger Walt G. said...

Jet Beagle, not nice, but I know my arguments are effective when people who do not agree with my viewpoint have to resort to calling me names. I hope you can frame an argument better when you write your representatives with your opinions that differ from mine. I will win, and you will lose.

My viewpoint comes from being a representative myself for a large group of people. I can assure you letting me know how you think and feel about a topic is much more important than writing to a blog or sitting on a bar stool after work complaining about "those guys in the union." Those are the same people we cannot get to attend meetings where important decisions are made or sit on committees because "it won't do any good." So, yes, I will continue to preach to get involved in those issues you feel passionate about. The ADA is not my immediate concern, so I have not contacted any of my representatives about it. But many of the posters here are quite concerned about the ADA. Find the time—my preaching’s done—have a nice day.

 
At 8/01/2010 9:48 AM, Blogger Walt G. said...

Jet Beagle,

You quoted me out of context. The comment period about the ADA Internet access change runs from July 26, 2010 to January 24, 2011. My comment you quoted was referring to future changes, and not the ADA as it currently stands. You have almost six months to be heard on that change. Don't be an "it won't do any good" person: Speak up. It's Sunday, so I figured I can get a little bit more preaching in :)

 
At 8/01/2010 12:06 PM, Blogger juandos said...

Consider the following from Overlawyered.com: Ross Douthat, “Did The Americans With Disabilities Act Work?”
by Walter Olson on July 30, 2010

Lots of links to ADA horror stories (Professor Perry included) and well worth the read...

 
At 8/01/2010 1:14 PM, Blogger Walt G. said...

Where's the story of the guy who slipped in our bathroom and did not get hurt because of the grab bars we put up just the day before to comply with the ADA?

 
At 8/01/2010 4:52 PM, Blogger Ron H. said...

"Where's the story of the guy who slipped in our bathroom and did not get hurt because of the grab bars we put up just the day before to comply with the ADA?"

Well, Walt, it's too bad you need something like the blunt instrument of government in the form of ADA to tell you how to keep people from getting hurt. If you were really concerned about slips & falls, I would think you would have installed those grab bars long ago on your own, without being forced.

BTW, who is this guy who slipped? Is he the same one who shit his pants because he couldn't get into the bathroom? I guess he found a way somehow, or did you fix that problem yesterday also?

I love these imaginative little anecdotes of yours, they're quite amusing.

Don't get me wrong, I'm in favor of accommodating those with disabilities, because it's the right thing to do. It's what makes us human, and I think most of us are eager to help. Disabled people can be good customers and good employees, and to exclude them is not in anyone's interest.

But, to hammer businesses with draconian one-size-fits-all rules, and then leave them exposed to ruinous losses if they fail in some small way, is counterproductive and just plain wrong.

On another thread you quickly dismissed the subject of abuses as follows:

"I agree there are ADA abuses and those should be dealt with..."

I would love to hear your recommendations on how these should be dealt with. They are chilling to business and we are all less well off because of them (except the plaintiffs and their lawyers, of course).

You also said you could see how the 9th District Court of Appeals came to its decision. Can you also see how the District court came to its original decision?

 
At 8/01/2010 6:15 PM, Blogger Walt G. said...

Ron H.

Juandos wanted me to read his horror stories on the Web, so I sent mine that wasn't. Neither one of us was using reliable information in a decision-making context.

Actually, our slip and falls in the bathrooms have decreased since the grab bars were installed using our accurate safety report matrix. I realize correlation does not mean causation, but it still makes you wonder. I do know they would not have been installed without the ADA requirement because everyone was laughing about them when we were putting them up.

One of the unknowns here is how many positive benefits might have come out of the ADA. I doubt we will see un-horror ADA Websites. Not shitting your pants is always nice. I know because I have missed a few times :)

I don't see why it ever ended up in district court. This should have been settled at the mediation stage. Business decisions about regulatory compliance are made everyday. It looks like Chipotle's probability analysis was off or they ignored their own analysis. Do you suppose the 45" wall is still there.

 
At 8/01/2010 8:33 PM, Blogger Ron H. said...

"I don't see why it ever ended up in district court. This should have been settled at the mediation stage."

Walt, it should be clear that the plaintiff didn't WANT to settle in mediation. He wanted a judgment so he could pursue a cash settlement, as allowed by CA law. This is how he makes a good living. He isn't at all interested in disabled people or in seeing his food prepared, but only in a big payday.

He refused the alternative experiences offered by Chipotle, saying he didn't want to "inconvenience employees or other customers". Well, if that was really the case, he wouldn't likely have complained about not seeing his food prepared in the first place. Such a minor loss.

This jerk had sued 20 other businesses for ADA violations, and after the violations were corrected - and he got his paycheck - he never went back to any of them except one.

"Business decisions about regulatory compliance are made everyday. It looks like Chipotle's probability analysis was off or they ignored their own analysis."

Not knowing for sure, if I had to guess, I'd say that different Chipotle restaurants are built by different builders, and that the height of the wall in front of food preparation counter may be at different heights for reasons having nothing to do with ADA guidelines. Keep in mind, that this food prep counter wasn't considered a "service counter" as described by ADA until the 9th Circuit Court said it was, so no one had any prior reason to consider it as such.

This, in my opinion, is a convoluted stretch of reason on the part of the court. The District court didn't see it that way, and didn't agree that jerkoff was sincere in his claim of major damage. They also found the alternative accommodations offered by Chipotle to be adequate. They sound good enough to me, and maybe to any reasonable person who really wants to see a burrito made, but not this guy. His only interest, from start to finish was a payday.

"Do you suppose the 45" wall is still there."

I'm almost certain it isn't. Again, guessing, I'd say it is either less than 36" if possible, or so high that no one watches their food being assembled.

 
At 8/02/2010 6:33 AM, Blogger Walt G. said...

Ron H. said: "I'm almost certain it isn't. Again, guessing, I'd say it is either less than 36" if possible, or so high that no one watches their food being assembled."

So, the explicitly stated purpose of the ADA was met whether you agree with it or not. The disabled and non-disabled are treated the same if at all possible. It was never about seeing burritos being made or the clown. The part you won't see or read about is how other stores will not build 45" walls now. The overwhelming number of businesses will be in voluntary compliance, and that is not controversial or newsworthy.

There's no doubt we are big government now, and many of the posts are complaints about that. I do get that, but let’s assume that’s a fixed variable and see how to deal with it on a day-to-day basis. Does a company spend a $1 million dollars on ten-year safety features for a piece of equipment that has a 30% to 40% chance of a lawsuit costing them $2 to $4 million every five years or spend that same $1 million on another piece of equipment that has an ROI of 8% to 10%-per-year for 10 years? Because of limited resources, both cannot be done.

We will leave OSHA compliance and fines out of the analysis. Put yourself in the business man's shoes, and then put yourself in the worker's shoes who has to run that piece of equipment for ten years. Do you both have the same viewpoint and make the same decision? Make sure you use an assumption that the business is profitable enough to afford either choice and stay in business and that their competitors have the same constraints. How would you spend that $1 million?

 
At 8/02/2010 7:42 AM, Blogger juandos said...

"Where's the story of the guy who slipped in our bathroom and did not get hurt because of the grab bars we put up just the day before to comply with the ADA?"...

Where's the story about the spaz that can't walk on his own and depends on the taxpayer to smooth over life's little bumps for him?

"Actually, our slip and falls in the bathrooms have decreased since the grab bars were installed using our accurate safety report matrix"...

Geez! A real life example of that old 'hire the handicap joke' being played out where Walt G works...

Still where is the rationale for stealing from one group of citizens in order to pander to another group of citizens?

"How would you spend that $1 million?"...

Put the 'accident prone clowns' out of work by closing down the business and then retire to a tropical paradise and begin drinking a million dollars worth of cocktails...

 
At 8/02/2010 9:28 AM, Blogger Jet Beagle said...

Walt G: "The disabled and non-disabled are treated the same if at all possible."

They are not being treated the same, and they should not be. What's more, the ADA has made the situation even worse for disabled job-seekers. Because employers know they are much more likely to be sued by a disabled person than ever before, they are less likely to hire one.

Why is it so damned important to liberal progressives that disabled persons be treated the same? If a business establishment can accomodate the disabled but use a different means for doing so, what is wrong with that? Why do we need an intrusive federal government deciding that counter heights should be 36 inches? The ADA is typical Washington overkill.

Has anyone else read Kurt Vonnegut's short story "Harrison Bergeron". It was included in his 1968 collection Welcome to the Monkey House. Though Vonnegut was certainly no conservative, in this short story he effectively captured the absurdity of the Left's attempts to achieve social equality.

In Vonnegut's dark vision of the future, social equality is achieved by handicapping the gifted: forcing athletes to carry weights; requiring the beautiful to wear masks; giving the intelligent eyeglasses designed to give them headaches. I suspect that many of today's progressives would be satisfied with such foolishness.

 
At 8/02/2010 10:09 AM, Blogger Walt G. said...

Jet Beagle: "They are not being treated the same, and they should not be."

That's not what the ADA law clearly and unequivocally states. People seem bewildered how the appeals court could rule for the clown: That’s how. I'm not saying I agree or disagree, but I understand the decision. He had a strong case, and Chipotle had a weak case.

I did a little survey of my own by calling around. Out of 5 major factories and three small businesses in Michigan and Ohio with close to 10,000 employees, not one ADA lawsuit has been known to be filed in the last 5 years or so. How many of the posters reading this know of an ADA lawsuit personally we could discuss? Is California an ADA anomaly? Maybe state law instead of federal law is the real problem.

 
At 8/02/2010 10:12 AM, Blogger Walt G. said...

Juandos,

In our world, the spaz sues the employer--and wins. Can I get dancing girls instead of cocktails in paradise?

 
At 8/02/2010 10:42 AM, Blogger Ron H. said...

"In our world, the spaz sues the employer--and wins. Can I get dancing girls instead of cocktails in paradise?"

No, Walt, in compliance with EEOC you can have dancing persons in paradise.

You don't have to agree with it but that's how it is.

And you will need to install grab bars before dancing of any kind will happen.

 
At 8/02/2010 10:51 AM, Blogger Walt G. said...

I don't think Juandos will let the EEOC into his paradise, but I will let him speak for himself.

 
At 8/02/2010 11:20 AM, Blogger Jet Beagle said...

Walt G: "That's not what the ADA law clearly and unequivocally states."

It doesn't really matter what an unenforceable law states. The reality is that many if not most disabled persons are not being "treated the same" as non-disabled persons. All the legislation which can be devised by bleeding heart do-gooders is not going to change that reality for every disabled person. In some cases a disability cannot be practically accomodated. In other cases an employer can find other reasons to not hire a disabled person he fears could eventually file suit against him.

The bottom line is very simple: it is not possible to legislate away all unfairness.

 
At 8/02/2010 11:44 AM, Blogger Jet Beagle said...

Walt G: "How many of the posters reading this know of an ADA lawsuit personally we could discuss?"

Not sure why you called Michigan and Ohio businesses, but here's an example of an ADA lawsuit which bother me:.

A hearing-impaired football fan sued Ohio State because understanding the announcers is "a game experience thing." Vince Sabino believes:

"it's very easy and it's an accommodation for everybody. If you get closed captioning, everybody can see it."

Closed captioning services are not free. Ohio State may be able to spread the thousands of dollars it will incur over hundreds of thousands of fans at its football games. But the cost for sponsors of smaller events will likely be prohibitive.

As a hearing-impaired person, I would like to see as many events as possible be closed-captioned. But I do not believe I should have a right to such a service, as apparently this Ohio State fan does.

Life is not fair. Both Vince Sabino and I were dealt one bad card. But we were also dealt many good cards also.

 
At 8/02/2010 11:52 AM, Blogger juandos said...

"In our world, the spaz sues the employer--and wins. Can I get dancing girls instead of cocktails in paradise?"...

No Walt G, not even in your world does that dream work...

Locally I know of two people who've done just that over the last six years...

There's no one to sue once a corporation goes out of business...

Sure go ahead with the dancing girls but remember to wear your rain boots...:-)

 
At 8/02/2010 12:02 PM, Blogger Jet Beagle said...

"WaltG: How many of the posters reading this know of an ADA lawsuit personally we could discuss?"

The EEOC sued Wal-Mart earlier this year because the retailer had not provided a sign language interpreter to accompany a stocker as she performed her daily duties in Alexandria, VA.

Wal-Mart may end up settling out of court. But just apply some basic economics principles to this case, Walt. If the ADA makes it a risk for an employer to hire a hearing-impaired person, do you think employers will be more or less likely to hire hearing-impaired workers in the future?

As much as anyone, I can appreciate what a hearing-impaired worker faces, and how an interpreter would help. But, as an employer, I'm going to think twice about hiring such a worker.

 
At 8/02/2010 12:18 PM, Blogger Walt G. said...

Jet Beagle,

I had to call those I know. I also sit on advisory committees in Michigan for small contractors, and I have never heard an ADA complaint from one of them. We did have an interesting situation last month when a guy that was collecting workman's comp from a heating contractor came in to dump the waste can in the room we were in. It seems he was a work study student at the college we were at. We thought we were going to have to pull the contractor off of the student. He was steamed that the student could do that type of work and was still getting workman's comp.

I'm hearing impaired myself. I rarely go to movies, but I did see Avatar this year and Titanic the movie before that. If am not alone, there's revenue potential for movie theaters in closed captioning.

 
At 8/02/2010 12:29 PM, Blogger Walt G. said...

Jet Beagle:

You are correct about the Wal-Mart case. As an employer you will have to make a risk assessment choice between your potential for getting sued for not hiring the disabled person and compare that to not providing the accommodations for the worker after you hire him or her. You do know not hiring the disabled is illegal, which carries potential liabilities, too? How well you assess those risks and others will determine if you or your competitors survive because you face the same regulatory constraints.

 
At 8/02/2010 1:36 PM, Blogger Jet Beagle said...

Walt G: "You do know not hiring the disabled is illegal, which carries potential liabilities, too?"

How naive are you? Do you really think that employers cannot find reasons for not hiring disabled workers? reasons which are perfectly legal? Obviously a WalMart cannot afford to communicate such tactics to its store managers. But tens of thousands of small businesses can easily discriminate against the disabled without such discrimination ever being detected.

Bleeding heart do-gooders continue to believe they can legislate away discrimination and help one disadvantaged group or another. History has proven them wrong. But why let the real welfare of the disadvantaged worker get in the way of do-gooders attempts to feel good about themselves.

 
At 8/02/2010 1:41 PM, Blogger Jet Beagle said...

Walt G: " If am not alone, there's revenue potential for movie theaters in closed captioning."

If the revenue potential is sufficient to offset the costs to provide closed-captioning, closed-captioning will likely be provided in some theatres. But that's not what bleeding heart do-gooders want, is it?. They want the federal government to impose their will on private businesses, regardless of the cost.

 
At 8/02/2010 1:59 PM, Blogger Walt G. said...

Not naive. I said assess risk. Obviously, you decided the risk was lower to not hire. Is that what the data show?

 
At 8/02/2010 2:40 PM, Blogger Jet Beagle said...

Walt G: "Is that what the data show?"

Commenting on the other post about the ADA, I provided information from professor Thomas De Leire about how the Act had reduced job opportunities for the disabled. But after reading this comment from you:

"I don't consider looking at Web pages research"

I wonder whether it is a waste of my time to provide links to research by Professor De Leire or anyone else who has studied the ADA's impact.

In any case, the law of demand is not going to be tossed aside by regulation: the higher the price of a good or service, the less people will demand of that good or service. For most of the employers in this nation, regulations covering discrimination against the disabled are unenforceable. One can easily prove the height of a "service" counter, but one cannot easily prove discrimination on the part of a small employer.

Professor De Leire's findings are consistent with the Law of Demand. The burden is not on me to prove his conclusions are valid.

 
At 8/02/2010 3:31 PM, Blogger Walt G. said...

Jet Beagle:

I'll consider professors' research, but not writers who depend on selling to the public for their living. Writers for publication serve a useful purpose of bringing topics to the surface, but I will go get my facts from where they should have gotten theirs. Actually, I did read the professor's article and found it quite good along with the Wal-Mart EEOC article.

Don't be so quick to state discrimination cannot be proved because it gets expensive if you are wrong. Would you pass over hiring me if I were more qualified than someone else and I could prove it through credentials and experience? First, why would you want to, and second, why take the chance?

I agree the ADA over reaches common sense, but at the same time, I believe those in wheel chairs should be able to easily use a bathroom. Unless, or until, the ADA changes, business owners will have to balance the risk of compliance against the risk of non compliance. That's a huge responsibility I admire, and they deserve to be compensated for that.

Anyway, agreeing with the Chipotle decision and understanding it are two different things. I don't suppose too many people on this blog have to support positions they don't agree with and have to make decisions they don't like because the other side presents a stronger case. I have to do that. That's not an easy job either.

 
At 8/02/2010 5:20 PM, Blogger Jet Beagle said...

Walt G: "Don't be so quick to state discrimination cannot be proved"

I stated that discrimination cannot be easily proved. As I said before, an employer can find numerous reasons for not hiring someone. For small employers, the burden of proving discrimination falls to the alleged victim of discrimination.

Walt G: "Would you pass over hiring me if I were more qualified than someone else and I could prove it through credentials and experience?"

Credentials and experience might get one an interview. Rarely will that alone get one hired. Social engineers might envision a world where objective measures determine hiring decisions. That's not reality - at least not in the non-union private sector.

 
At 8/02/2010 10:56 PM, Blogger Benjamin said...

I hate these parasites--crippled people, the military, the courts system and lawyers, farmers--all sucking money out of productive hard-working people in the private sector.
A pox on their houses.

 

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