5 ADA Accessibility Myths from Hunter Kitchens, In: “Facility System Solutions”
Don’t let these common misconceptions trip you up.
If you’re like most business owners, when you think of the Americans with Disabilities Act, you think of employee-related buzzwords like “reasonable accommodations,” the “interactive process,” and whether workers can perform the “essential functions” of their jobs. It’s a major undertaking to educate management on these few phrases alone, but they actually pertain to only one of the five sections that comprise the ADA (specifically, Title I, which covers employment).
EEOC statistics routinely place Title I disability claims as a top reason that employees file a Charge of Discrimination, but other rising litigious stars emerging from the ADA include Title II (government accessibility) and Title III (places of public accessibility), which aim to provide equal access to all people with disabilities – not just employees – in everyday business activities. In fact, accessibility lawsuits in 2014 rose an estimated 40% from 2013 and were on pace to reach more than 3,800 cases filed in federal court, according to the most recent statistics available.
Your building could easily become the target of one of these cases. Prepare proactively and guard against accessibility litigation by understanding the basis of these suits and the common misconceptions that make businesses vulnerable.
Why Are Accessibility Claims So Attractive?
Unlike Title I, ADA public accommodation plaintiffs do not have to go through the EEOC’s pre-lawsuit administrative process. Instead, they can proceed directly to federal court. The plaintiff’s bar is attracted to accessibility lawsuits because a) the ADA’s public accommodation requirements do not require proof of intent to discriminate; b) the access guidelines are highly detailed and liability can be based on a relatively minor technical violation; and c) like many federal civil rights laws, a prevailing plaintiff is generally entitled to attorney’s fees, reimbursement of costs, and other expenses, even though the plaintiff is only allowed to seek injunctive (non-monetary) relief.
In theory, a plaintiff will file an ADA accessibility lawsuit after a business refuses the patron access to goods and services by way of its inaccessible design or operations. If disabled plaintiffs are on a crusade or are being incentivized otherwise, the concoction of attraction has created a windfall of recent litigation for businesses.
Plaintiffs and their attorneys have taken advantage of many misconceptions business owners have when it comes to ADA compliance by refusing to give businesses a chance to address access issues before filing complaints. Oversights cost companies thousands of dollars in the form of renovations, loss of productivity, and attorneys’ fees. If any of these common accessibility myths ring true, it’s time to take a second look at your building to make sure it abides by the letter of the law.
Who Is Disabled?
The following groups are protected by the ADA, according to the Department of Justice’s technical assistance manuals at ADA.gov.
Someone with a “physical or mental impairment that substantially limits one or more major life
activity,” including walking, talking, seeing, hearing, breathing, reasoning, or taking care of oneself. Major life activities also include bodily functions, such as cell growth or the proper functioning of immune, nervous, respiratory, or other body systems.
People with a record of impairment that previously limited life activities, such as a history of treatment for cancer or mental illness that is now in remission.
Anyone who is regarded as having a disability even if their life activities are not substantially limited, such as a person with adequately controlled diabetes or a facial disfigurement. This category also protects people who are not impaired but are treated as if they are – for example, someone who is refused entry to a public accommodation based on untrue rumors that he or she is HIV-positive.
The law also protects able-bodied people against discrimination based on their known relationship or association with people who have disabilities. The Department of Justice presents an example of a day care center that refuses to admit a child whose sibling is HIV-positive, even though the child seeking admission does not have a disability.
1) ADA accessibility requirements are a one-time building code requirement.
The ADA is a civil rights law, not a building code. ADA accessibility is a complaint-driven, continual, and ever-changing law that operates in part under a document called ADA Standards for Accessible Design. The Department of Justice has released two versions of this document: 1991 and 2010.
ADA accessibility applies to all publically accessible buildings regardless of the year they were built in order to attain “readily achievable barrier removal” for all disabled individuals.
Typically, building code officials review construction plans and inspect facilities several times before work is completed in order to comply with state and local codes. However, there is no such inspector for ADA accessibility, so it’s up to you to make sure your building is compliant.
2) Landlords are liable for compliance, but tenants are not.
Both the landlord and the tenant share the legal responsibility for complying with ADA accessibility, including removing barriers or providing other accessibility devices such as “auxiliary aids and services.” These include interpreters, written materials, assistive listening devices, or computer-aided services. The landlord and tenant may decide by lease who is supposed to make the changes or provide the services, but both remain legally responsible to the patron or employee.
3) Older or historic buildings are exempt from the requirements.
There is no “grandfathered in” concept under the ADA. The law does hold facilities built or renovated after 1990 or 2010 to a more stringent standard of accessible design, but all publically accessible places must take reasonable steps to improve access to patrons.
This mandate includes the obligation to remove barriers from existing buildings whenever it is “readily achievable” to do so. “Readily achievable” accessibility is a legal term determined by a reasonableness test for when a business can provide access to the products or services it offers “without much difficulty or expense.”
4) A business that settles an ADA lawsuit cannot be sued again.
The mere existence of “drive-by” lawsuits that target and re-target businesses (often hoteliers, retailers, and restaurant owners) for accessibility issues is evidence enough that this statement is
In a drive-by incident, a disabled patron visits a business for the sole purpose of finding potential violations with parking, wheelchair ramps, doorway widths, or bathroom mirrors or hand dryers that need to be moved an inch lower. If a violation is discovered, the visitor – who is likely not even a real patron – will file a federal lawsuit against the company to ask for costly modifications and, of course, attorney’s fees.
To cut down on this practice, California enacted SB 1186 in 2012 to help reduce the likelihood that a plaintiff could file multiple claims by making numerous visits to the same business. As a practical tip, if your business has been sued for alleged ADA accessibility violations, attempt to negotiate a contract for future pre-litigation notices in order to limit or prevent further litigation.
5) ADA requirements only cover wheelchair users.
ADA accessibility is much broader than physically modifying new or existing structures to accommodate mobility aids. The law also applies to modifications of company policies, practices, or procedures to allow individuals with all types of disabilities access to any goods and services offered to the general public. Recent modification examples include allowing service animals into doctor’s offices, mandating that waiters read menu items to seeing-impaired patrons, requiring store clerks to assist with highly placed items, and providing screen readers and refreshable Braille touch displays to a company’s website.
The concept of who is “disabled” was greatly expanded by the 2009 amendments to the ADA, but has always been broader than wheelchair users.
Create Your Game Plan
To help prevent litigation, your best defense is always a proactive offense. The first step is to simply read and educate yourself on the 2010 version of ADA Standards for Accessible Design, especially provisions concerning the most frequent complaints: parking lots, building entrances, ramps, bathrooms, and unreachable objects.
Second, designate an ADA coordinator educated on the standards who routinely inspects the property and has a documented plan of action to make accessibility updates at some point in the near future. Judges will take into consideration a business’s good faith efforts and plan to remove barriers and provide access to patrons.
Finally, if you receive a demand letter or complaint, do not immediately cave and spend substantial sums on major renovations. The ADA allows “safe harbor” provisions to limit your obligation to modify existing structures. In the best case scenario, the plaintiff is hoping to cash in on the probability that you still believe these ADA accessibility myths.
Hunter Kitchens is a defense litigation attorney and licensed patent attorney. Andrew S. Naylor is the chair of the Labor and Employment practice for Waller Lansden Dortch & Davis, LLP, which provides legal counsel in Americans with Disabilities Act matters throughout the United States. For additional information, please contact Naylor at (615) 850-8578 or firstname.lastname@example.org.