Are you in compliance with the American’s with Disabilities Act (ADA)? What happens if you’re not? Is there a way to fix or retrofit your workspace to be ADA compliant? This week’s post summarizes a recent article from Understanding the ABA, the blog maintained by Attorney William D. Goren. In Understanding the Burden of Proof When ADA Remediation Is at Issue, Goren discusses building and retrofitting ADA-compliant structures. Highlights of the article include:
Title III Requirements
Title III of the ADA calls for ADA compliance in construction or remediation of non-compliant structures. Specifically:
Buildings constructed after 1992 must accord with ADA Architectural Guidelines. The specific guideline depends upon the year the building was built.
Renovations to existing buildings must also comply with ADA Architectural Guidelines; and the path of travel to the renovations must allow access by persons with disabilities.
Existing facilities must include whatever changes are “readily achievable.”
Readily Achievable Remediation
Where ADA remediation is required, “readily achievable” changes mean those that are achievable without much difficulty or expense; and that determination in turn means looking at several factors including:
- the nature and cost of the action needed;
- the overall financial resources of the site or sites involved in the action;
- the number of persons employed at the site;
- the effect on expenses and resources;
- legitimate safety requirements necessary for safe operation, including crime prevention measures;
- if applicable: A) the geographic separateness and the administrative or fiscal relationship of the site or sites in question to any parent Corporation or entity; B) the overall financial resources of any parent Corporation or entity; C) the overall size of the parent Corporation or entity with respect to the number of employees; D) the number, type, and location of its facilities; and E) the type of operation or operations of any parent Corporation or entity, including the composition, structure, and functions of the work force of the parent Corporation or entity.
What is Readily Achievable
Examples of “readily achievable” ADA remediation of existing buildings include:
- Installing ramps;
- Making curb cuts in sidewalks and entrances;
- Repositioning shelves;
- Rearranging tables, chairs, vending machines, display racks, and other furniture;
- Repositioning telephones;
- Adding raised markings on elevator control buttons;
- Installing flashing alarm lights;
- Widening doors;
- Installing offset hinges to widen doorways;
- Eliminating a turnstile or providing an alternative accessible path;
- Installing accessible door hardware;
- Installing grab bars in toilet stalls;
- Rearranging toilet partitions to increase maneuvering space;
- Insulating lavatory pipes under sinks to prevent burns;
- Installing a raised toilet seat;
- Installing a full-length bathroom mirror;
- Repositioning the paper towel dispenser in a bathroom;
- Creating designated accessible parking spaces;
- Installing an accessible paper cup dispenser at an existing fountain;
- Removing high pile, low density carpeting; and
- Installing vehicle hand controls.
Prioritizing Remediation
Places of pubic accommodation should address “readily achievable” modifications in this order:
Provide access from public sidewalks, parking lots, or transportation, including installation of entrance ramp, widening entrances, and providing accessible parking spaces.
Provide access to areas where goods and services are available to the public such as adjustment of display racks, rearranging tables, providing Brailled and raised character signage, widening doors, providing visual alarms and installing ramps.
Provide access to restroom facilities including removal of furniture or vending machines, widening of doors, installation of ramps, providing accessible signage, widening of toilet stalls, and installation of grab bars.
Provide access to all other goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation.
Burden of Proof
The burden of proof with respect to whether barrier removal is readily achievable rests with the Plaintiff, at least initially. The Plaintiff bears the initial burden of production to present evidence that a suggested method of barrier removal is readily achievable. Then the burden shifts to the Defendant who bears the ultimate burden of persuasion as to its affirmative defense that a suggested method of barrier removal is not readily achievable.
Key Takeaways
The key takeaways from the case noted in Bill’s blog entry are that:
- If served with a Complaint, the Defendant should respond promptly unless there is a strategic reason not to do so; and
- Removal of barriers specifically identified in the Regulations as “readily achievable” may be the best defense of all.