Skip to Content

The Americans with Disabilities Act: An Update

When contemplating the removal of barriers, the concept of "readily achievable" applies.

In 1990, Congress passed what is known as the Americans with Disabilities Act (ADA).

ADA is a civil rights law that requires persons with disabilities be given equal access to facilities and services. Title III of the Act covers public accommodations, commercial facilities and certain other private entities. It has been over 5 years since all of Title III became effective.

A review for ADA compliance is now generally requested as part of commercial property due diligence investigations. To understand the significance of that evaluation, it is important to understand how the Act has been implemented. What should real estate professionals know about their responsibilities under the Act? And what are the consequences for failing to comply with its provisions?

What is Covered?

The Act requires owners and operators of places of public accommodation to remove barriers to make their goods and services available to and usable by people with disabilities, provide auxiliary aids and services , modify any policies, practices, or procedures that may be discriminatory, and ensure that there are no unnecessary eligibility criteria that screen out or segregate persons with disabilities. There are 12 categories of "public accommodation" ranging from such facilities as places of lodging, public gathering places, education and similar buildings.

Owners or operators of commercial facilities including offices, factories, and warehouses must comply fully with the new construction and alterations provisions of the ADA Accessibility Guidelines (ADAAG). Existing facilities may not be required to comply with the regulations covering non-discrimination in policies, practices and procedures, effective communication, and barrier removal.

Who is Covered

When evaluating a property for compliance with ADAAG, the common things to look for are building access (e.g. ramps, door widths, etc.), restroom facilities, parking areas, and other readily identifiable barriers to persons with disabilities that limit their movement. However, often overlooked is the fact that ADA applies also to persons with visual disabilities, hearing or speech disabilities, or cognitive disabilities. The ADA guidelines cover not just accessibility but communication. Thus, auxiliary aids and services may be necessary to enable persons so disabled to fully benefit from the facilities, services, goods and programs.

Methods of Compliance

When contemplating the removal of barriers, the concept of "readily achievable" applies, meaning those actions which are "easily accomplishable and able to be carried out without much difficulty or expense." When modifications are not readily achievable, an establishment is required to take alternative steps that are readily achievable to provide "equal access."

The regulations do not define how much effort and expense are required for a facility to meet its obligation. One guideline, having to do with alterations made after January 26, 1992 to a building's "primary function area" suggests that the added costs are "disproportionate if they exceed 20 percent of the original alteration."

Enforcement Practices

The Americans with Disabilities Act is enforced by the Department of Justice. Private parties may bring lawsuits to obtain court orders to stop discrimination. No monetary damages are available in such suits. However, the court may order payment of compensatory damages and back pay to remedy discrimination.

Individuals may also file complaints with the Attorney General who is authorized to bring lawsuits in cases of general public importance or where a "pattern of practice" of discrimination is alleged. In these cases, monetary damages and civil penalties may be awarded. Civil penalties may not exceed $50,000 for a first violation or $100,000 for any subsequent violation.

By December of 1994, the Department of Justice reported that it had processed over 300 formal and informal settlement agreements. By September of 1995, the most recent update reviewed here, the number listed was over 400. The report lists one new lawsuit under Title III regarding treatment (or the refusal thereof) of HIV/AIDS patients by a dentist. The most significant action listed was a settlement with Safeway Stores, Inc. to create one 32" opening between the security bollards or cart corrals used at the entrances to many of its stores, and to undertake a review of all 835 of its stores to ensure compliance.

A variety of other settlements, briefs, and agreements were noted. In all, plaintiffs were required to correct deficiencies but financial penalties were relatively minor. In one case, a hospital was required to pay $10,000 in civil penalties. In another, Sears was required to pay $3,500 in compensatory damages.

Conclusion

In the brief time that the Americans with Disabilities Act has been in effect, there has been a significant amount of casework regarding its enforcement. Although there have been few if any major financial settlements, it is clear that there is a legal and moral compulsion to comply fully with the provisions of the Act. This has enriched our environment as persons with disabilities have been able to participate more fully in society. However, we do not expect that the ADA Accessibility Guidelines marks the end of the process. Requirements are continually revised and new recommendations are likely to be made in the years to come.

Building owners and managers will do well to keep abreast of these developments. A variety of additional informational resources are available, including a computer bulletin board, which may be accessed by dialing 202-514-6193 or through the World Wide Web at http://www.usdoj.gov.

The Engineering Advisor is intended to enhance your knowledge of technical issues relating to buildings. For additional information on any subject, please feel free to call us. Our commitment is to provide you with timely, accurate information.

Criterium Engineers, Copyright © 1999