ADA In Focus - Volume 5, Number 3 Fall 2000
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Calendar Diversity and Disability in the Workplace: The Winner's Circle Distance Learning 2000 Program: Access to Air Travel Update on the Americans with Disabilities Act: 10 Years Later Employment Provisions of the ADA: Beyond the Basics Disability & Participation: 7th National Disability Policy Forum Coalition News The ADA & IT Information Center launched a Small Business Campaign in July, to educate small business owners in Federal Region III about the ADA. The goal is to make small businesses aware of the availability of free ADA technical assistance through the Center. Call the Center at 800-949-4232 (V/TTY) for more information or to receive materials. As part of the campaign, the Center profiled some regional businesses, highlighting efforts to attract and accommodate customers with disabilities. These profiles include: Yes! Gourmet Market, Washington, DC Snodgrass Funeral Home, Charleston,WV A Likely Story, Alexandria, VA Cape Drugs, Cape St. Claire, MD ChesDel Restaurant, St. Georges, DE Kidsports, Sinking Spring, PA
To Contact the Coalitions: ADA Issues When a new building is constructed, who is responsible for ADA compliance? While it seems like a simple question, legal matters being what they are, there have been disputes on this point. Responsibility for ADA compliance in the design and construction of new facilities is an issue that has received attention from both the general public and the courts. A few high profile cases have been in the spotlight in recent years, and have provided some guidance and clarification. In one such case, the Department of Justice (DOJ) sued the franchisers of Days Inns, as well as the owners, architects, and contractors of five Days Inn hotels across the country for violations of the new construction requirements of Title III. These were the first complaints to be filed by the Department in federal court alleging a failure to "design and construct" new buildings that are accessible to persons with disabilities. They are also the first to assert the liability of architects involved in the design and construction process. Days Inn of America Settles Suit DIA agreed to undertake a nationwide initiative designed to make hundreds of its new hotels across the country more accessible to persons with disabilities. Under the agreement, Days Inns will:
Owners, Contractors, and Architects Reach Agreements In this agreement, John Heard Associates admitted to having designed the facility in violation of the ADA. The agreement requires the architect to certify that future designs of any public accommodations or commercial facilities are in compliance with the ADA; to undergo a minimum of 24 hours of training on the ADA Standards, and to pay a civil penalty of $4,500. Suits Challenge Issue of Accessibility at Sports Arenas This lawsuit, in addition to addressing the issue of architects' liability, brought the "line-of-sight" issue to the forefront. Seating areas designed for wheelchair users did not allow them to see the playing fields when people seated in front of them stood. Ellerbe Becket was sued by other parties, including the Paralyzed Veterans of America in a case involving the MCI Center in Washington, DC. Who is Liable: Architects or Owners? The judge stated that since the regulation uses the phrase "design and construct" (emphasis added) that it only applies to entities who are responsible for both activities, such as owners or general contractors. Courts in Minnesota and Florida held otherwise, reasoning that such a narrow interpretation would result in a gap in coverage, which Congress clearly did not intend. DOJ and Ellerbe Becket subsequently reached an agreement in the "pattern or practice" case. The architectural firm agreed that all future sports arenas that it designs will provide wheelchair seating locations with a line of sight over standing spectators. The agreement specifically applies to any facility with more than four fixed seats in which spectators can be expected to stand for all or any part of an event. Clarifying the Role of the Architect Clearly, owners and operators of new buildings are obligated to address ADA issues as well. The parties are best served by working together to ensure ADA compliance. The Department of Justice, the Access Board, and the ADA & IT Information Center are available to provide information about the ADA Accessibility Guidelines. Another Question of Liability: Landlord or Tenant? One liability issue that has received recent attention is the responsibility of landlords in public accommodation situations. The requirements of Title III apply to a private entity that "owns, leases (or leases to), or operates a place of public accommodation" (36.104); further, the regulations specifically state that both landlords and tenants are subject to Title III's requirements (36.201(b)). Although specific responsibilities may be allocated between parties in a lease agreement, this does not affect landlord/tenant liability in relation to the public. For example, if a real estate office (with parking) has no accessible parking, a person who uses a wheelchair can sue both the business and the owner of the property. This is what happened recently in California. The landlords asked to have the case against them dropped because they had a lease which stated that the tenant was responsible for compliance with all laws. The 9th Circuit Court rejected this request, recognizing that Congress clearly intended to cover landlords, suggesting that the request creates an incentive for landlords to monitor compliance on their property. The ADA clearly indicates that both the landlord and tenant are responsible for compliance, regardless of how the lease reads. Therefore, it is in the best interest of both parties to understand their responsibilities under the ADA. ALTERNATIVES TO COURT: Resolving ADA Issues through Mediation What options are available to the individual who believes he has been discriminated against under the ADA? Under Title I, a complaint first must be filed with the Equal Employment Opportunity Commission, which then has 180 days to investigate. Under Titles II and III, a complaint may be filed with the Department of Justice, or suit may be filed immediately. It is widely known that both the EEOC and DOJ have a backlog of ADA complaints, and hiring attorneys can be expensive. This is why many people are now turning to mediation, an appealing alternative to the expense and bureaucracy of the traditional complaint process. What Is Mediation? Why Mediation? Mediation of Title I Issues Mediation of Title II and Title III Issues Courts Rule States Immune from ADA The unanimous decision reverses a ruling by the Western District of Pennsylvania in the case of Latvia vs. the Commonwealth. In the suit, Jeffrey Latvia claimed that after being diagnosed with a disabling condition he was discriminated against by the Pennsylvania Department of Corrections. The Commonwealth argued that it was immune under the 11th Amendment, but the court refused to dismiss the case, relying on a long line of cases from federal appellate courts around the country. In reversing the District's opinion, the three-member panel of Circuit judges referred to the US Supreme Court's recent decision in Kimel v. the Florida Board of Regents. The Kimel decision concluded that states cannot be sued under the Age Discrimination in Employment Act. The Court found that Congress may abrogate the states' 11th Amendment immunity only by finding that the states themselves violated the 14th Amendment. Additionally, the Court argued that, "virtually every state in the country has enacted its own legislation prohibiting discrimination against the disabled in employment, and some have even enacted statutes advancing the explicit policy of encouraging employment of the disabled." Without more detailed findings of a "nationwide pattern of arbitrary and illegitimate discrimination against the disabled by the states," the Court said, "the ADA cannot be viewed as a proportional and congruous response to the problem of state-perpetrated discrimination against the disabled." Denver Settles with Police Officers The city and county also will pay $1.5 million to 11 police officers who were forced to retire as a result of Denver's prior policy prohibiting them from being reassigned. The amount is the largest so far obtained by DOJ under Title I of the ADA. The agreement resolves a suit in which the DOJ alleged that Denver's refusal to reassign police officers with disabilities to other vacant city and county jobs violated Titles I and II. Several Denver police officers who became disabled, many as a result of injuries incurred in the line of duty, were forced to retire after Denver officials determined they could no longer perform the essential functions required of police officers. "The ADA's protections are essential for police officers who sacrifice their health and their ability to continue their police careers to protect us and keep our neighborhoods safe," said Acting Assistant Attorney General Bill Lann Lee. "It would be cruel irony indeed if, as a result of their devotion to duty, we allowed employers to discard them." National Federation of the Blind and America OnLine Settle AOL has developed and posted online an accessibility policy, which was crafted with input from NFB and other organizations. See http://corp.aol.com/who_public.html#access for more information. What's New All of the following documents are available from the US Department of Justice and can be ordered by calling their ADA Information Line (1-800-514-0301 (V) or 1-800-514-0383 (TTY)). Automated service is available 24-hours a day for recorded information and to order publications or visit the DOJ web site at: www.usdoj.gov/crt/ada/publicat.htm. ADA Guide for Small Towns The ADA and City Governments: Common Problems A Guide to Disability Rights Laws Common ADA Problems at Newly Constructed Lodging Facilities Five Steps To Make New Lodging Facilities Comply With The ADA ADA Checklist for New Lodging Facilities NEW EEOC RESOURCE: Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the ADA This enforcement guidance focuses on the ADA's limitations on disability-related inquiries and medical examinations during employment. The guidance gives examples of the kinds of questions that are and are not "disability-related" and examples of tests and procedures that generally are and are not "medical." The guidance also defines what the term "job-related and consistent with business necessity" means and addresses situations in which an employer would meet the general standard for asking an employee a disability-related question or requiring a medical examination. The guidance can be found on EEOC's website at: www.eeoc.gov/docs/guidance-inquiries.html or by calling the ADA & IT Information Center at: 800-949-4232 (V/TTY). Source: EEOC Website on the internet ADA-RELATED WEBSITES OF INTEREST
www.usdoj.gov/crt/ada/pubs/reg3rpt.htm Visit this website to review the report that covers ADA activities in the Mid-Atlantic region on behalf of the Department of Justice since the ADA went into effect on January 26, 1992.
www.usdoj.gov/crt/ada/agency.htm This updated list contains telephone numbers and Internet addresses of federal agencies and other organizations that provide information about the ADA and informal guidance in understanding and complying with provisions of the ADA.
www.access-board.gov The US Access Board has redesigned and updated its website to include a wealth of easy-to-use accessibility information. The Access Board is an independent federal agency devoted to accessibility for people with disabilities. http://disabilities.gov As part of the ADA's 10th Anniversary, this new website covers disability related information, including education, employment, entrepreneurship, housing, transportation, civil rights, self-determination, technology, health, recreation, and other topics of interest to individuals with disabilities. This "Bobby-approved" site includes links to several government agencies and private organizations.
ADA in Focus is published
three times yearly by the ADA & IT Information Center for the Mid-Atlantic
Region.
The staff of the ADA Information
Center is available to provide information on all aspects of the
ADA to individuals, businesses, government entities and organizations
in the Mid-Atlantic Region.
ADA In Focus is intended
for use by individuals, state and local governments, businesses,
legal entities, and others interested in developments in the Americans
with Disabilities Act. This publication is intended solely as an
informal guidance and should not be construed as legally binding.
ADA In Focus does not serve as determination of the legal rights
or responsibilities under the ADA for any individual, business or
entity.
Richard G. Luecking, President TransCen, Inc. is a Rockville, MD-based firm specializing in human resources issues that impact workplace diversity. TransCen administers the ADA & IT Information Center, providing business and technical assistance to DE, DC, MD, PA, VA and WV.
This is a publication of the ADA & IT Information Center, funded by the National Institute on Disability and Rehabilitation Research of the U.S. Dept. of Ed. (Grant # H133D60006). The opinions contained in this publication are those of the grantee and do not necessarily reflect those of the Dept. of Education.
ADA & IT Information Center
for the Mid-Atlantic Region © 2000 by TransCen,
Inc.
ADA In Focus
is available in large print, Braille, audio cassette, and computer
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©2008 DBTAC: Mid-Atlantic ADA Center
UPCOMING TRAINING EVENTS
This train the trainers' seminar addresses employment issues for people with disabilities, including reasonable accommodation, effective interviewing skills, overview of the ADA, myths and stereotypes about people with disabilities, and employer concerns.
Making travel plans for the holiday season? From the parking lot and airport shuttle, to check-in, boarding and final destination, this session will discuss the responsibilities of ticket agents, airports, and airlines under the Americans with Disabilities Act and the Air Carrier Access Act.
This annual ADA Update, sponsored by the Maryland Coalition for ADA Education, will provide the latest information from the EEOC and US Department of Justice on employment issues, architectural issues, and other disability policy issues. The keynote speaker will be Hugh Gallagher, author of FDR's Splendid Deception.
This training is for those people who have a good understanding of Title I and would like more in-depth information. Case studies will be used to sharpen analytical skills when tackling Title I issues. Registration is limited.
Sponsored by the Disability Statistics Research and Training Center and the National Institute on Disability and Rehabilitation Research (NIDRR).
TEN YEARS OF THE ADA: Small Business Campaign Launched in Commemoration of Anniversary
One lesson business owner Gary Cha learned from working in the service industry is to listen to customers. So when one of his customers asked him to install an automatic door opener, Cha agreed. "We are in the business to serve people," he said. "Every time we can give a little extra service, it helps improve our relationships with customers."
When L.J. Fairless took over operations of his family's funeral home, his priority was to renovate the building and make it physically accessible. "We wanted our patrons to feel at ease when making important decisions about funeral arrangements," said Fairless. "An important priority is to ensure that people with disabilities have access to vital areas of the funeral home. Improving access to our facility was an emotionally rewarding decision."
Bookstore owner Marilyn Dugan knew from experience that physical barriers results in lost sales. Her children's bookstore, A Likely Story, was located in a townhouse, with stairs a constant nuisance for staff and customers alike. When the store moved to a new location, Dugan selected a site with a completely flat side entrance, and she had a ramp built to compensate for the entrance's front step. "The ramp has helped hundreds of customers," said Dugan. " It provides better access for elderly customers, people with disabilities, and parents with strollers."
Business at Cape Drugs has grown particularly fast among people who disabilities who seek advice and compounding skills. "Many of our customers have special medical needs or conditions, which they want to discuss with a qualified pharmacist," explains Dr. Tom Wilson. "By offering a value-added service, we establish a personal relationship that isn't found at drug store chains or supermarket pharmacies."
Being accessible to people with physical disabilities is one reason many locals return to the family-owned ChesDel Restaurant. Since people with disabilities gravitate by necessity to establishments with good access, the decision to renovate the restaurant made sense. "With generations of families living here, we've become a place where people can meet with friends and neighbors," says owner Dawn Lester.
Kidsport is known for catering to families, from toddlers to seniors to people with disabilities. It has ramps, double-wide doors, and accessible restrooms. "I feel good that everyone can use this facility," says owner Gary Seibert.
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A QUESTION OF LIABILITY: Is the Architect Responsible for ADA Compliance?
The suits had alleged that DIA and its parent company, Cendant Corporation, because of their significant role in the design and construction of new Days Inns hotels, violated the ADA by allowing franchisees to construct hotels that did not comply with the ADA Accessibility Guidelines (ADAAG). In fact, Days Inns provided prototype plans, imposed detailed design requirements, reviewed and approved plans, and inspected and approved completed facilities prior to opening. The franchiser, Days Inns of America, Inc. (DIA), entered an agreement to settle the matter on its behalf.
The owners, contractors, and all of the architects for each of the five hotels named in the lawsuits eventually entered into consent decrees or agreements with DOJ. The final consent decree was entered recently with John Heard Associates, Inc., the architect of the Days Inn in Evansville, Indiana.
In a similar case in 1995, DOJ filed suit against the architectural firm of Ellerbe Becket, the principal architect of several sports arenas built in the early 1990s. DOJ alleged that the architectural firm violated Title III of the ADA by engaging in a pattern or practice of discrimination by designing several arenas that were inaccessible to people who use wheelchairs.
Various courts held differing views about the liability of architects. The judge in the DC case dismissed Ellerbe Becket from the suit because the firm did not "own, lease, or operate" the arena, and further, because they only designed the project, and had no role in its construction.
Although the question of architects' liability under the ADA is not black and white, indications are that architects and building designers should make every effort to comply with the ADA.
Mediation, a form of Alternative Dispute Resolution (ADR), is an alternative to the current investigation and litigation process. Both the EEOC and DOJ offer ADR to parties who are interested in negotiating a resolution rather than going through litigation.
The traditional investigation and litigation process can be time consuming and expensive. Mediation is an informal process in which a trained mediator is provided by either the EEOC or DOJ to assist the parties in reaching a negotiated resolution of a charge of discrimination. The mediator helps the parties to explore the issue jointly and reconcile differences. As a result, both parties come to a mutually satisfactory agreement.
The EEOC enforces Title I of the ADA, so persons interested in mediating a disability discrimination concern may contact the EEOC at: 800-669-4000 (V) or 800-669-6820 (TTY). Additional information about the EEOC's mediation program is available in each regional field office of the EEOC.
Through its mediation program, the DOJ refers appropriate ADA disputes to mediators at no cost to the parties. The mediators in the DOJ program are professionals trained in the legal requirements of the ADA. For more information, contact the DOJ at: 800-514-0301, ext. 7 (V), or 800-514-0383 (TTY), and follow the usual procedure for filing a complaint (for Titles II and III). Note on the complaint the desire to take the dispute to mediation.
The Federal Appeals Court in the Third Circuit (PA, DE and NJ) has ruled that states and their agencies cannot be sued under Title I of the Americans with Disabilities Act because Congress did not properly abrogate the states' 11th Amendment immunity from suit.
Under a consent decree with the Justice Department, the City and County of Denver will modify their employment policies to allow police officers with disabilities to be reassigned to vacant civilian jobs if their disabilities make them unable to continue working as police officers.
The National Federation of the Blind (NFB) recently announced that it will withdraw its lawsuit against America OnLine (AOL). Under the agreement reached by the two parties, AOL will continue its efforts to develop sofware and content areas that are compatible with screen reader assistive technology and NFB will retain the right to renew its claim after a period of one year.
DEPARTMENT OF JUSTICE PUBLISHES NEW RESOURCES
This 21-page guide presents an informal overview of some basic ADA requirements and provides cost-effective tips on how small towns can comply with the ADA.
This 9-page document, which contains a sampling of common problems shared by city governments of all sizes, provides examples of common deficiencies and explains how these problems affect persons with disabilities.
This 21-page booklet provides a brief overview of 11 federal laws that protect the rights of people with disabilities and provides information about the federal agencies to contact for more information.
An 11-page document lists a sampling of common accessibility problems at newly constructed lodging facilities that have been identified through the Department of Justice's ongoing enforcement efforts.
A 3-page document highlighting five steps that owners, operators, and franchisors can take to make sure that new lodging facilities comply with the ADA.
This 34-page checklist is a self-help survey that owners, franchisors, and managers of lodging facilities can use to identify ADA mistakes at their facilities.
Title I of the ADA limits an employer's ability to ask disability-related questions or require medical examinations at three stages: pre-offer, post-offer, and during employment. In its previous guidance on preemployment disability-related inquiries and medical examinations, the Commission addressed the ADA's restrictions on disability-related inquiries and medical examinations at the pre- and post-offer stages.
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