Let the shameful wall of exclusion come down

By Bernadette Franks-Ongoy

Spring 2012

It’s almost been 22 years since George H.W. Bush said these words when he signed the Americans with Disabilities Act on July 26, 1990. And although some improvements have occurred over the years, we have a very long way to go before people with disabilities are able to participate fully in community life.

All swimming pools, wading pools and spas that are open to the public and part of hotels and motels were to be in compliance with the accessibility standards of the ADA by this past March 15, 2012.

However, in response to that pressure from the American Hotel and Lodging Association, the Department of Justice has extended the compliance date for 60 days, from March 15 to May 15, 2012, “to provide an opportunity for pool owners and operators to assess their obligations under the Final Rule and determine how best to comply.”

The Department of Justice is also considering whether an even longer period of time to is needed for pool owners and operators to meet their compliance obligations.

Postponing the accessibility requirement is just not right. Again, people with disabilities are being asked to be patient and wait in line for their rights. If a hotel has a pool, you should not have to call ahead to check if it is accessible. That should be a given.

People with disabilities should have the same access to recreational and exercise opportunities as everyone else.

The ADA has been the law for 22 years. Its troubling that an association can pressure Congress and the White House and the implementation of requirements of the ADA end up being postponed. This is not only a bad precedent, but it devalues people with disabilities.

The United States Access Board first issued pool lift standards and accessibility guidelines for recreation facilities in 2002. The United States Access Board incorporated those standards into its 2004 ADA Accessibility Guidelines. The pool lift standards of the 2010 ADA regulations come directly from those 2004 guidelines. The hotel industry has had 18 months since the promulgation of the 2010 regulations to prepare for the pool lift standards to go into effect in March 2012.

The hotel industry claims the requirement of installing accessible lifts in pools is cost prohibited, and, therefore, pools across the country in hotels will be closed or otherwise will face lawsuits and civil fines. This is an overreaction and a misrepresentation of the impact the accessibility guidelines.

The ADA and the new regulations make clear that existing pools have to satisfy the new pool lift standards only if doing so is “readily achievable” — a term the statute defines as “easily accomplishable and able to be carried out without much difficulty or expense.” In other words, if it is too hard or too expensive to put a lift in an existing pool, the law

doesn’t require it — which means that there is no possibility of civil penalties. The statute also explicitly requires courts to take account of the size and financial resources of the business in determining what is readily achievable — which means that small, family-owned hotels are especially unlikely to have to install new lifts in their existing pools.

Shame on the hotel industry. People with disabilities are your patrons. Stop whining and “let the shameful wall of exclusion finally come tumbling down.” Make your pools and spas accessible.

P.S. When you make your travel plans this summer, call ahead and ask if the pool at your hotel is accessible. Some hotels have made the modifications,  but the majority have not.

This article was written by Bernadette Franks-Ongoy, executive director of Disability Rights Montana, the civil rights protection and advocacy system for people with disabilities. A portion of the contents of this article was taken from the blog posting of Samuel Bagenstos, a professor of law at the University of Michigan.

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