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THE AMERICANS WITH
DISABILITIES ACT: AN UPDATE
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
Criterium
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