Employment Law Commentary - A Revised Roadmap For Disability Access in California

Title III of the Americans with Disabilities Act of 1990 imposes substantial obligations for those who own or lease facilities open to the public. Not only must newly constructed and altered facilities meet exacting standards for disability access, but so, too, must existing facilities be free of barriers to access to the extent that is "readily achievable." To mitigate the impact of these obligations, Title III remedies are limited to injunctive relief and attorney's fees. Damages are not available. Predating the ADA by over two decades, California law has imposed similar disability access requirements, with two important differences: remedies include damages and, until recently, there was no obligation to remove barriers from existing facilities. Thus, with barrier removal obligations, the ADA had greater reach, while with damages the state law created greater financial exposure1

More recently, an amendment to the state legislation as interpreted by a federal court has effectively merged the two laws. As interpreted by the court, California law now incorporates the ADA's barrier removal obligations and, unlike the federal law, provides for damages if those obligations are not met. The implications are sobering. Those who own, lease, purchase, or operate places of public accommodation face substantial exposure to liability if they do not take steps to ensure that their facilities not only complied with applicable law when built or altered, but also are presently free of "readily" removable barriers to access.

Overview of Title III of the ADA

Title III prohibits "discrimination" against the disabled with respect to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation. 42 U.S.C. ß 12182(a); 28 C.F.R. ß 36.201(a). In general, "public accommodations" are facilities which are open to the public such as hotels, restaurants, theaters, and professional offices. Title III applies only to private, as opposed to public (i.e., governmental), entities. If you own, operate, or lease to a business that serves the public, and you are not a governmental entity, then you are covered by Title III of the ADA.

As relevant to facility design and construction, Title III imposes three types of obligations:2 (1) new facilities must be designed and constructed so that they are readily accessible to and usable by people with disabilities (42 U.S.C. section 12183 (a) (1)); (2) altered areas of existing facilities must be readily accessible to and usable by people with disabilities ("alterations obligation") (42 U.S.C. section 12183(a)(2)); and (3) architectural barriers in existing facilities, whether altered or not, must be removed if readily achievable ("barrier removal obligation") (42 U.S.C. ß 12182(b)(2)(A)(iv), (v)).

New Construction and Alterations

Title III requires that public accommodations and commercial facilities designed and constructed for first occupancy after January 26, 1993, be "readily accessible to and usable by individuals with disabilities." 42 U.S.C. ß 12183(a). Accessibility guidelines ("ADAAG") exist which set forth the technical standards for accessible design. See "Standards for Accessible Design," located at Appendix A to 28 C.F.R. Part 36.

Likewise, the ADA provides that, where alterations are undertaken on or after January 26, 1992, the altered portions of the facility must be readily accessible to and usable by individuals with disabilities.

In addition, when alterations affect or could affect the usability of or access to an area of the facility containing a so-called "primary function," the entity must also make the alterations in such a manner that the path of travel to the altered area and the bathrooms, telephones, and drinking fountains serving the altered area, are readily accessible to and usable by individuals with disabilities. The entity may be relieved of this requirement, however, where the alterations to the path of travel or the bathrooms, telephones, and drinking fountains serving the altered area are disproportionate to the overall alterations in terms of cost and scope (as determined under criteria established by the Attorney General). 42 U.S.C. ß 12183(a)(2).

The regulations to the ADA define an alteration broadly as "a change to a place of public accommodation or a commercial facility that affects or could affect the usability of the building or facility or any part thereof."3 According to the Federal Register preamble to Title III, "the Act requires the concept of 'usability' to be read broadly to include any change that affects the usability of the facility, not simply changes that relate directly to access by individuals with disabilities."4 The Department of Justice ("DOJ") provides the following examples of alterations: installing a new display counter, moving walls in a sales area, replacing fixtures, carpet or flooring, and replacing an entry door. Simple maintenance, such as repainting a wall, is not considered an alteration. See ADA Guide for Small Businesses, DOJ, www.ada.gov.

Existing Facilities: Barrier Removal

A lesser standard of compliance ó the so-called "barrier removal" standard ó applies to all buildings, including those constructed prior to the effective date of the ADA. In such facilities, the ADA requires the removal of architectural barriers and communication barriers that are structural in nature,5 where such removal is "readily achievable."6

"Readily achievable" is nominally defined as "easily accomplishable and able to be carried out without much difficulty or expense." 42 U.S.C. ß 12181(9). Whether barrier removal is readily achievable depends on a balancing of the difficulty and expense of the proposed project and the overall financial and other resources of the entity. As this plays out in practice, it can include substantial expense where there are substantial available resources.7

The obligation to engage in readily achievable barrier removal is an ongoing duty. The DOJ recommends that public accommodations establish procedures for ongoing assessments. Various architects, engineers, and disability consultants, among others, have the necessary expertise to conduct these surveys.

Where an entity...