Accessibility isn’t just the law, it’s good business
January 14, 2021
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How compliance with the Americans with Disabilities Act is everyone’s responsibility
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Not all client visits bring the excitement of starting or finishing a project. Some have a more serious tone. I visited a national hotel chain site that had been sued for non-compliance with the Americans with Disabilities Act (ADA). It was a long day of walking the property, inside and out, with the hotel’s attorney to assess the many complaints in the lawsuit. Nearly all the plaintiff’s complaints had been justified and many areas of the hotel and site were not accessible. As I pulled out of the parking lot after wrapping up my work, I could not help but wonder how so many businesses and places of public accommodation struggle with providing access to people with disabilities, even 30 years after the ADA became law.
I notice accessibility barriers in the built environment everywhere I go. Such barriers can make it difficult or even impossible for a person with disabilities to access the goods and services offered by a business. According to the Centers for Disease Control and Prevention, 1 in 7 American adults have a disability that affects mobility. That’s a large number of potential customers who will choose to stay in a different hotel or spend their money at another business. The Department of Labor estimates that Americans with disabilities represent over $200 billion in discretionary spending power, which is a significant revenue source that businesses can’t afford to ignore.
" }Share
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What is the Americans with Disabilities Act?
The Americans with Disabilities Act was originally signed into law on July 26, 1990. It was a watershed civil rights law that, among other things, ensured access to the built environment for people with disabilities. It was enacted to prevent discrimination against the disabled that limited their full participation in society. It truly changed people’s lives. Title III of the ADA covers places of public accommodation, which includes privately owned, leased, leased to, or operated facilities such as hotels, banks, restaurants, retail shops, recreation facilities, and more. The ADA Standards for Accessible Design (ADA Standards), originally issued in 1991 and then updated and reissued in 2010, spell out the requirements for what makes the built environment of a facility accessible.
" }Despite a law for 30 years, many business and commercial property owners are still not aware of the requirements of the ADA and their obligations to provide access to goods and services to people with disabilities.
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Take a proactive approach and develop a plan to minimize risk
Despite a law for 30 years, many business and commercial property owners are still not aware of the requirements of the ADA and their obligations to provide access to goods and services to people with disabilities, which includes the systematic removal of architectural barriers in older facilities. The consequences of this can range from patrons taking their business elsewhere or even to being sued for noncompliance in a federal court, both of which can have potentially serious financial impacts. Fines, damages, and attorney’s fees can run into the tens of thousands of dollars or more for a single violation.
Developing a plan to remove architectural barriers in existing facilities can help ensure business and property owners meet their obligations under the law. While having a documented plan isn’t obligatory, it can potentially serve as evidence of a good faith effort to comply according to the United States Department of Justice, the entity that enforces the ADA. There are several steps owners can take to position themselves to develop a plan:
- Perform an assessment of the existing facility or facilities to identify any deficiencies, along with potential solutions for addressing them.
- Prioritize items and determine a schedule for implementing the work required to bring the facility or facilities into compliance. Develop a budget and allocate the necessary funds. It’s beneficial to coordinate the work with normal replacement and maintenance cycles, which helps ensure capital isn’t spent twice to make improvements.
- Execute the work and continue to review the plan on a yearly basis, making adjustments as needed.
Whatever the approach, don’t wait until a customer sues or lodges a complaint before taking action.
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Approach depends on the age of the facility
Knowing when the facility was constructed is key to determining an effective approach to barrier removal. For example, a facility with elements constructed or altered prior to March 15, 2012 that comply with the 1991 ADA Standards are not required to be brought into compliance with the current 2010 ADA Standards where differences exist, unless those elements are altered. This is known as safe harbor. Alternatively, facilities that were constructed or altered prior to the ADA must have barriers removed when it is readily achievable to do so. Readily achievable means “easily accomplished and able to be carried out without much difficulty or expense,” which depends on a number of varying factors and can be different for each business. What may be readily achievable for a large national retail chain may not be so for a small corner store.
While facilities that were built after March 15, 2012 should theoretically comply with the current ADA Standards, that is unfortunately not always the case and deficiencies may exist. It’s also important to understand there may be state or local building codes in place that require a greater degree of access than what is required by the ADA. At the end of the day, owners need to be confident that their facilities built within the last 28 years are compliant, and that they are proactively removing barriers in older facilities.
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Don’t go it alone
Limiting liability and keeping and retaining customers through accessibility compliance should be an important part of any business plan. But navigating all these requirements can be confusing, and business and commercial property owners should engage the services of a qualified professional to help guide them along on their path to compliance. A knowledgeable expert can help identify barriers and deficiencies, as well as assist in the planning, prioritization, and execution efforts in a way that ensures business and property owners, as well as their customers, reap the most benefits.
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