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Understanding-the-ADA-GorenAre 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:

  1. the nature and cost of the action needed;
  2. the overall financial resources of the site or sites involved in the action;
  3. the number of persons employed at the site;
  4. the effect on expenses and resources;
  5. legitimate safety requirements necessary for safe operation, including crime prevention measures;
  6. 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:

  1. Installing ramps;
  2. Making curb cuts in sidewalks and entrances;
  3. Repositioning shelves;
  4. Rearranging tables, chairs, vending machines, display racks, and other furniture;
  5. Repositioning telephones;
  6. Adding raised markings on elevator control buttons;
  7. Installing flashing alarm lights;
  8. Widening doors;
  9. Installing offset hinges to widen doorways;
  10. Eliminating a turnstile or providing an alternative accessible path;
  11. Installing accessible door hardware;
  12. Installing grab bars in toilet stalls;
  13. Rearranging toilet partitions to increase maneuvering space;
  14. Insulating lavatory pipes under sinks to prevent burns;
  15. Installing a raised toilet seat;
  16. Installing a full-length bathroom mirror;
  17. Repositioning the paper towel dispenser in a bathroom;
  18. Creating designated accessible parking spaces;
  19. Installing an accessible paper cup dispenser at an existing fountain;
  20. Removing high pile, low density carpeting; and
  21. Installing vehicle hand controls.

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This guest-post, a synopsis of “Let’s Talk About Arbitration” by Attorney William Goren from his blog, Understanding the ADA.  The original post discusses issues pertaining to arbitration of claims arising under the Americans with Disabilities Act. The author assumes that readers know the difference between arbitration and mediation. Covered points include these:

  • Can an ADA claim be subject arbitration?
  • Are there situations in which an arbitration agreement is deemed unconscionable?
  • Can an arbitration agreement assert that an award cannot be challenged for any reason?

The post also discusses:

  1. Whether an arbitration agreement covers ADA matters will depend upon how it is phrased, but if phrased broadly enough, an arbitration agreement can cover ADA matters.
  2. An arbitration agreement can be held unconscionable, but proving that an arbitration agreement is unconscionable is not an easy task.
  3. An arbitration agreement that prevents any challenges whatsoever to the award may well be declared against public policy (It was in Georgia, and Georgia very closely follows the Federal Arbitration Act).
  4. The Second Circuit goes with the stay, but the U.S. Court of Appeals are split on this. Ultimately, it will all come down to what “shall,” means.
  5. In a comment the author also notes a recent California Supreme Court case concluding that the Federal Arbitration Act preempts state requirements as to how notification is given that an agreement is subject arbitration (font size for example).

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