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From the
September 2007 issue of:


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Enabled, Not Disabled: Victors, Not Victims (part 2)
 
by Alan N. Schlaifer
Principal
Law Offices of Alan N. Schlaifer, P.C.
 
This poem provides a good segué from last month’s article. For in dealing with disabilities, one of the facts of life is that it may stem any one or more of many causes.

It may arise from an accident (such as in part one of this article, with Danny Heumann, who asks, “Who’s really in a wheelchair?”), a disease, war (as with veterans), a criminal act, or a genetic defect or predisposition.

As mortals, any of us, including you, may be affected or afflicted by what Shakespeare described in Hamlet as “the thousand natural shocks that flesh is heir to.” So any of us may come down with a disease or become disabled at any time, or over time. No one is immune.

Many individuals, estimated at about 20% of the American population between 16 and 64, or about 50 to 60 million people, already face this situation. That is a huge proportion of your prospective guest and worker pools.

This month, we turn to two more facets of these issues. One is a brief overview of the legal arena. The second is people, well-known to the public, who are among the many examples of those who have triumphed despite disabilities.

Next month, we will discuss a few of our industry’s exemplars who have achieved much, despite any disabilities they have overcome.

Disabilities Law
Humanitarian concerns, as well as business needs for guests and workers, have meshed to create protections for the protected classes of individuals with disabilities.

Various federal laws, particularly the Americans with Disabilities Act of 1990 (ADA), have been enacted to help this huge group in public accommodations, employment, public transportation, and other realms. Some selected groups, such as veterans, have had special rights for much longer period.

Federal law, as well as many state and local rules, require your firm to make your facilities accessible to persons with disabilities. Whether it is hearing or vision loss, serious illness, or other physical or mental limitations, a wide variety of conditions is included.

For this article, we will comment only briefly on the ADA requirements as to visitors and employees. To learn about the specifics of this statute and other laws that may apply to your places of employment or resorts, you should contact your legal counselor.

Accessibility of Public Accommodations
Throughout the years, this has been an area of significant regulation and litigation. Title III of the ADA applies to private facilities, such as resorts, hotels and restaurants, that are open to the public. It requires, in part, that such entities build their facilities so that they are accessible to persons with disabilities in compliance with the ADA Standards for Accessible Design. They must not discriminate against guests on the basis of disability.

The Fair Housing Act similarly prohibits discrimination in the sale, rental and financing of “housing” on various bases, including disability.

Caveat: In an article such as this, we can only touch upon a few of the issues. For further questions and clarification, you should consider seeking advice of counsel.

Some key issues include:
--What is a “disability” under the ADA?
--What is a “public accommodation,” especially in vacation ownership realm?
--What aspects of a “public accommodation” need to be made accessible, and what proportion of facilities need to be built or modified to that standard?

Covered Disabilities
The ADA applies to persons who meet the definition of "disabled" under the Act. A person is considered disabled, and thus protected under the ADA, if he or she either actually has, or is thought to have, a physical or mental impairment that substantially limits what the ADA calls a "major life activity."

Such activities are the basic components of anyone’s life. They include walking, talking, seeing, and learning. If a person has an impairment that substantially limits his or her ability to perform one or more of these activities, he or she is considered disabled under the ADA.

The statute does not name all covered impairments. A few examples include confinement to a wheelchair, reliance on assistive devices such as canes and walkers, blindness, deafness, a learning disability, and certain kinds of mental illness.

Scope of Public Accommodation
Title III of the ADA covers businesses that offer public accommodations. Timeshare and most other facilities used in vacation ownership are available to varying extents to the public. This includes hotel and motel rooms used for mini-vacations, as well as units in projects available through exchanges in the U.S. Global standards vary, and exchange directories do sometimes list, with a symbol, the ability to lodge such guests.

A question may arise as to whether a Private Residence Club, or PRC, is “public.” Harry McCoy, Counsel to the Ballard Spahr law firm in Salt Lake City, says this result may occur, even with a private club, if, for example, PRC rentals are promoted to the public.

A similar rationale could apply to other clubs and condo-hotels rentals. Accordingly, providing needed accessibility may reduce legal risk and be less expensive in the long run than the alternative.

Examples of Accessibility
Public accommodations must comply with basic nondiscrimination requirements that prohibit exclusion, segregation, and unequal treatment. They need to comply with specific requirements in architectural standards for new and altered buildings; reasonable modifications to policies, practices, and procedures; effective communication with people with hearing, vision, or speech disabilities; and other access requirements. They have to remove barriers in existing buildings where it is easy to do so without overly great difficulty or expense.

Of course, each of those aspects of the ADA involves many, detailed factors and issues.

Recent federal settlements of litigation involving branded hotels spelled out examples of what these requirements mean in practice. Such requirements - most, if not all of which may apply to typical vacation ownership and related resort facilities - include the following:

• Create accessible guest rooms in all classes of sleeping accommodations
• Provide an accessible counter at the front desk
• Ensure that deaf guests are provided with a communication kit with visual notification devices
• Provide men’s and women’s accessible public restrooms in various parts of the property, together with directional signage indicating the availability of these facilities
• Provide house and pay telephones in the lobby equipped with volume control and hearing aid compatible
• Provide a TTY (TeleTYprewriter) at the front registration desk, as well as signage to indicate its availability
• If there is a fire alarm present in the building, provide a visual fire alarm appliance in the men’s and women’s toilet rooms that is integrated into the building or facility alarm system
• Give access to all recreational facilities, such as fitness rooms, saunas, hot tubs, and swimming pools that are open to others, including lockers, toilet stalls, dressing rooms, and showers.

Attorney McCoy cites an example in the last category: “A hot tub for disabled guests on another level of the property (for purposes of accessibility) may actually be a violation of the ADA concept of mainstreaming the disabled: it sets them apart and prevents them from integrating into the resort's recreational experiences.”

Impairment, such as blindness, and deafness present additional challenges for the persons affected and their host properties. Project operators need to be sensitive to these issues and plan in advance to comply with the ADA and provide a comfortable stay.

For example, it is considered inadvisable for housekeepers to move items when such visitors are visually impaired: such guests memorize items’ locations and other aspects of room layout. This specific issue is less of a problem at timeshares because of the usual absence of daily maid service.

Yet, many other challenges involving those with disabilities remain and need to be addressed.

Since it went into law, many thousands of lawsuits have arisen over varied ADA issues. One is the extent to which websites need to provide complete access to visually impaired people. A federal case against an airline held that the availability of services through other means, such as telephone, ticket counters and reservations agents, was sufficient. Other courts have reached different results.

Class actions against a major online travel service charge ADA Title III and state law violations on the basis of the lack of guarantees that disabled rooms will be provided with the same discounts and features, or even guaranteed availability, as for non-disabled guests. A case against lodging operators resulted in settlements guaranteeing disabled room reservations on the same basis as other customers.

Vacation ownership developers, operators and exchange firms face similar practical and legal issues in dealing with reservations and availability. Without careful planning, development and operations, new and existing projects could face dissatisfied customers and unwanted legal challenges.

State laws and courts are popular for alleged disabled access violations in such tourist and timeshare havens as Florida, California and Hawaii.

America’s – and the world’s – rapidly growing aging population may increase your legal risks. What may be ample and minimize exposure now, such as the number of units with disabled access, may not suffice in the future.

Whether or not litigation arises, adverse publicity can spread quickly. That was what happened when major news media picked up the story of an RV park owner who denied swimming pool access to a couple and their HIV-positive son.

Reasonable Accommodation: Employment
A second major topic is in the ADA and related state or local requirements that apply to the employment of persons with disabilities. In brief, “reasonable accommodations” need to be made for those with the full range of disabilities listed above.

It appears that most cases involve physically challenged workers. Yet, one case against a hotel operator charged unlawful discrimination against mentally retarded housekeepers, such as by separating them from other workers and excluding them from staff meetings.

“Finding meaningful employment can be hard enough for young people, not to mention young people with disabilities,” said Richard E. Marriott, chairman of the Marriott Foundation. “By working with school districts and employers, the Foundation’s Bridges program is helping these young people and their employers break through the ‘fear’ barrier and think in terms of ‘ability’ versus ‘disability.’”

We commented extensively on the Bridges program in Part 1 of this article. It may provide useful insight to you if you take a few moments and review it.

New Heroes
Some heroes in our society or your company could be demonstrating a special type of courage. This category is for people with disabilities. Whether it is hearing or vision loss, serious illness, or other physical or mental limitations, these people, like Danny Hermann, described in last month’s article, have all risen above their challenge.

If you give them a fair chance, they may become star employees, heroes, and loyal to you beyond belief.

Whether your organization was gently prodded by the Americans with Disabilities Act, other laws or not, these individuals have ”raised the bar.” They have inspired others and shown that they are “Enabled, Not Disabled.”

Some individuals dealing with these issues have achieved great fame. Franklin Roosevelt in a wheelchair with polio served as New York’s Governor and then America’s President for more years than anyone else. Helen Keller overcame being deaf and blind to write moving thoughts.

Despite not being able to see the keyboard, Stevie Wonder’s writing was a different type, beautiful music that has moved audiences worldwide. Songs such as “You Are the Sunshine in My Life,” and albums including “Songs in the Key of Life,” have raised the spirits, and eyes, of fans worldwide to see what is within the souls of others.

A Real Superman
After falling not from the sky as Superman, but from a horse, Christopher Reeve reached new heights as a true superman for the cause of those with paralysis and needing stem cell and other research to find a cure for paralysis.

A deaf girl, Mabel Hubbard, first as student, then as wife and business manager, played a key supporting role in keeping on track the career of an inventor who was dedicated mainly to improving the communications abilities of those with hearing impairments.

Inspired by his father’s dedication to the deaf through the creation of “Visible Speech” (duly recognized in George Bernard Shaw’s Pygmalion and the musical hit, My Fair Lady), Alexander Graham Bell wove together his knowledge of speech, hearing and electricity to create the telephone. His beloved Mabel, and others such as Helen Keller, inspired him.

Their disability became the springboard he used to give each of us untold abilities, on a daily basis, to stay in touch with others.

These are but a few of many we could cite. Let us not forget that early labels often ignore underlying realities. Late in the 19h century, a young German man was considered a poor speaker and dropped out of high school partly because of clashes with school authorities. He sought to enroll in a Swiss technical school, but flunked the entrance exam.

Not too promising, was he?

Who was this young man? None other than one of the great geniuses of all time, Albert Einstein, beautifully portrayed in a new book by Walter Isaacson. As Albert proved, whether one is a failure or success may, in some ways, be relative to the tests and situations an individual faces.

Playing Ball with Your Employees
Team sports provide a good analogy for this subject. The best teams capitalize on team members’ greatest strengths and work around possible weaknesses.

In baseball, for example, only those with the best arms, variety, speed and control pitch. All things being equal, a pitcher who can last the longest is a starter. Shorter terms are filled by relievers, of whom some are closers.

In tough situations, such as with the bases loaded in a tight game, a savvy manager calls in left-hander to pitch to a left-handed batter, and a rightie to a right-hander, because the odds are better for the pitcher in those situations.

Indeed, this approach is consistent with the research by Marcus Buckingham, a past keynoter at a recent ARDA Convention. A senior consultant with the Gallup Organization, he is author of First, Break All the Rules and Now, Discover Your Strengths.

After spending more than a decade focusing on how to find, keep and harness the talent of the best employees, he concluded that employee satisfaction and retention have a direct correlation to customer loyalty.

His second book advises employers to stop trying so hard to correct weaknesses in employees, and instead foster their positive talents. He says this is the quickest path to success for any organization.

This approach can be used to boost performance, whether or not a member of your staff is viewed as having a “disability.” By focusing on discovering, and capitalizing, on the strengths of each of your staff members, you can build your organization, and enable your colleagues, one person at a time.

Our Industry’s Heroes
Those in your company, or elsewhere in our industry, have probably not made headlines. Their disabilities may be readily visible – as using a wheelchair – or not – such as dyslexia or other challenges. Yet, hey have had and continue to have a dramatic, positive impact on the lives of those around them, our industry, and their communities and families.

In next month’s issue, as noted above, we will discuss a few of them. We will start with an update on one of our industry’s elder statesmen, Gary Terry, a co-founder of the trade group that became ARDA.

But there are others, too. Maybe their achievements will inspire you and suggest ways you can help empower everyone in your company, whether or not they have an ADA-protected disability.

For you can become a “big wheel,” whether or not you use a wheelchair. And you can have great vision and other assets, even if your eyesight is limited.

Great executives know, as in the title of Stedman Graham’s fine book, that they should seek Leaders, Not Labels. But your eyes – and mind – need to be open to the possibilities.



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