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There
is a fundamental fact to remember when thinking about the ADA: it is a civil
rights law that is complaint driven. This means an individual with a
disability who thinks he or she has been discriminated against (or an
organization representing them) can file a complaint either with the U.S.
Department of Justice (DOJ) or directly in Federal court. With
this in mind, a facility manager might wonder what would be considered
"acts of discrimination" under Title III of the ADA. Would it mean: · Failure
to perform readily achievable barrier removal in existing buildings? · Failure
to comply with the ADAAGs for alterations and new construction? · Failure
to modify policies and procedures to ensure equal access to goods and
services for individuals with disabilities? The
answer to all of the above is yes. Over
the past 15 years, some areas related to the ADA have changed while others
have not. And currently, more changes are in review. What
Has Not Changed If the facility is an existing building constructed
prior to the ADA,
the readily achievable barrier removal requirement is ongoing. These
requirements have not changed since the implementation of the ADA in January
1992. However,
shortly after that date, readily achievable barrier removal disappeared from
the radar screen. Many believed ADA changes would take place as part of
renovations, alterations, and new construction. Unfortunately,
budget constraints and shortfalls may have left many renovation plans on the
shelf, also leaving required ADA modifications undone and facility management
and ownership vulnerable to an ADA complaint for failure to make a "good
faith effort" toward a readily achievable barrier removal process. There
have been some changes since the original implementation of the ADA. Often,
these changes come from the courts rather than from the Federal government.
Many facility managers may be aware of the high profile employment cases
decided in the Supreme Court and how these have defined-and in some cases
changed-the ADA. One decision limited the definition of a disability,
indicating if someone with a disability used medication to manage his or her
condition, then the mitigating factor (legal terminology for medication)
removed protections offered under the ADA. For
Title III Public Accommodations (facilities where patrons, customers, and
visitors can make a claim of discrimination), courts, lawyers, and
individuals can also make determinations that may differ from those
originally intended by the ADA. Subsequent costs include lawyer fees,
settlement costs, government penalties ($55,000 for the first offense and
$110,000 for each subsequent), and relief paid to the individual. For
the past 13 years, the response to ADA compliance has been, "I'm not
going to do anything until I have to." With that scenario in place,
facility managers lose control of the compliance process. If a complaint is
lodged, the judge, lawyer, and plaintiff will dictate what to do, when to do
it, and how much to spend. Unless the organization is a single entity with
limited financial resources, it will have great difficulty arguing financial
hardship and will be required to disclose financial records as part of its
defense.
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Proposed changes to the Americans With Disabilities Act
may have an impact on facility managers. |
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By Joan
Stein It has
been nearly 15 years since the passage of the Americans with Disabilities Act
(ADA) and more than 13 years since the implementation of the Americans with
Disabilities Act Accessibility Guidelines (ADAAGs). However,
many facility managers and other building professionals still mistakenly
believe the ADA does not play an important role in their facilities. |
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