20 years ago the United States Congress enacted the Americans With Disabilities Act (“ADA”) in order to prohibit public establishments from discriminating against individuals with disabilities. The ADA was designed to eliminate all discriminatory effects of architectural, transportation, and communication barriers. Whether or not a building was built or a business was operating before the ADA was enacted, all businesses have a legal obligation to comply with the ADA.
The attorneys at Custodio & Dubey, LLP have dealt with public establishments that are not ADA-compliant on behalf of their clients in hundreds of cases. In this section of our website, we offer insight into many common ADA issues. If you are disabled and have come across a non-compliant public establishment, please contact the attorneys at Custodio & Dubey, LLP today toll free at (213) 593-9095 for a free consultation of your situation, our attorneys are committed to ending discrimination against the disabled and we can help you.
Click the below links to view the appropriate section on this page. Also view our other ADA pages in the sidebar.
- Americans With Disability Act – General Background
- Examples of “readily achievable” barrier removal
- Attorneys At Custodio & Dubey, LLP File Class Action ADA Lawsuit Against Starbucks
In passing the Americans with Disabilities Act (“ADA”), Congress noted that the isolation and segregation of persons with disabilities due to the discriminatory effects of physical barriers are a “serious and pervasive social problem,” and there has been very little “legal recourse to redress such discrimination.” The ADA lists several purposes, one of which is “to provide clear, strong, consistent enforceable standards” as part of a mandate to eliminate such discrimination. The ADA is modeled after section 504 of the Rehabilitation Act of 1973. A key difference is that while the Rehabilitation Act requires facilities that received federal funding to be accessible to persons with disabilities, Title III of the ADA applies to places of public accommodation specified by the ADA, regardless of the receipt of federal funding.
Under the ADA, new construction must be “readily accessible” to persons with disabilities. The new construction’s “readily accessible” standard is met if the new construction or alteration is done in compliance with either the 1991 or the 2010 ADA Standards for Accessible Design. These standards include detailed, lengthy and technical specifications. In contrast, existing facilities must be made accessible to disabled persons if the changes are “readily achievable.” The “readily achievable” standard for existing facilities is met by making alterations that are “easily accomplishable and able to be carried out without much difficulty or expense.”
After its passage, Congress charged the Department of Justice (“DOJ”) with implementing the ADA. One of the DOJ’s ongoing tasks, in partnership with the Federal Access Board, is to create regulations to provide guidance for the enforcement of the ADA. Congress created the Federal Access Board in 1973 to ensure access to federally funded buildings, and it has become a “leading source of information on accessible design.” The DOJ codifies the resulting regulations in the Code of Federal Regulations, and the appendices of that code further explain the regulations. In 1991, the Federal Access Board created the ADA Accessibility Guidelines (“the ADAAG”). The ADAAG were purely advisory to the DOJ and addressed new construction standards. The DOJ then sought public comment on the ADAAG, made applicable changes based on those comments, and finally adopted and codified the ADAAG as the official standards for the ADA. In 2010, the DOJ released a revised version, which became effective March 15, 2012.
Courts have upheld the “two distinct systems for regulating building accessibility: one to apply to existing facilities (those designed and constructed for occupancy before January 26, 1993) and another to apply to later-constructed facilities.” Pre-existing or “grandfathered facilities” only need remove easily removed barriers. In contrast to grandfathered facilities, new construction violations are indefensible, unless there is a structural impracticability. A structural impracticability exists when “unique characteristics . . . make accessibility unusually difficult to achieve.” Apart from structural impracticability, courts have no authority to apply equitable discretion in excusing the violation.
Overall, statutes, advisory and technical assistance materials, and case law work as a team to contribute to the goals of the ADA, voiced by President George H.W. Bush, “[E]very man, woman, and child with a disability can now pass through once-closed doors into a bright new era of equality, independence and freedom.”