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In the Title III context, the Department of Justice also lists "legitimate safety requirements that are necessary for safe operation, including crime prevention measures," as a factor to be considered under the readily achievable and undue burden standards.17 Therefore, public accommodations do not generally have to make alterations or provide services when doing so would be dangerous, such as the blocking of fire exits.
Conspicuously missing from the list of factors is the marginal benefit to the disabled person of the proposed action. This has led some attorneys to argue that, under all the standards, extremely large or wealthy entities must do whatever is necessary to provide complete access. Thus, the argument goes, it would not be an "undue burden" for a theater to spend hundreds of dollars on an interpreter to sign for a single deaf patron who purchased a discount ticket. Likewise, it is "readily achievable" for wealthy retailers to install elevators and other high cost items in their existing stores.
While this argument has some surface appeal, there are a number of significant counter-arguments. For example, the statutory and regulatory factors set forth for these standards are not exhaustive. Indeed, several courts have explicitly considered the marginal benefit to the disabled person in determining whether a proposed action is readily achievable, an undue burden, or an undue hardship.18 This makes sense. "The preamble [to the ADA] actually markets the Act as a cost saver, pointing to 'billions of dollars in unnecessary expenses resulting from dependency and nonproductivity.' §12101(a)(9). The savings will be illusory if employers are required to expend many more billions in accommodations than will be saved by enabling disabled persons to work."19
In any event, attorneys practicing under Titles II and III sometimes will be faced with the issue of which standard to apply -- "readily achievable," "reasonable modification," or "undue burden." As a general rule, existing architectural barriers and their alternatives are governed by the relatively-lenient readily achievable standard. Barriers to communication -- which may require auxiliary services such as an interpreter or text-telephones -- are governed by the undue burden defense. Everything else, such as whether to permit guide dogs in a restaurant or allow golf carts on an exclusive course,20 is governed by the reasonable modification standard discussed above.
Attorneys familiar with Title I should have little problem applying the undue burden and reasonable modifications standards. There are analogous Title I counterparts. The readily achievable standard, however, may cause some difficulty. This is because, although the same factors are used, the standard must be applied to unique facts involving architecture and construction. For example, it may not be immediately apparent to an employment attorney that there are difficulties in placing a ramp in a major traffic flow area, or that widening a doorway to provide access could lead to a fire code violation. In addition, application of readily achievable standard invariably leads to the highly specific new construction standards set forth in Titles II and III.
The New Construction Standard
Terms of art such as "reasonable accommodation," "readily achievable," and "undue hardship," are standards, not hard and fast rules. Their application invariably depends on all the facts of the case.21 However, Titles II and III of the ADA can also be very rule-specific, especially with regard to architectural and building code requirements. Many plaintiffs' attorneys contend that a finding of disability discrimination -- with its concomitant award of state law damages and attorneys fees -- can be determined simply through a tape-measure and a level.
Under Titles II and III, all commercial and government facilities built after January 26, 1992 must comply with the new construction standards set forth in the Americans with Disabilities Act Accessibility Guidelines (ADAAG) or the Uniform Federal Accessibility Standards.22 Any building alteration performed after this time is potentially subject to the same rules, as well as a requirement that a "path of travel" be provided to the area of alteration.23
To say the new construction standards are specific is an understatement. A water fountain, for example, must have a clear space between it and the floor of at least 27 inches in height, 30 inches in width, and 17 inches in depth. The spout can be no higher than 36 inches, and the water flowing from it must extend up an additional four. Controls can be either front mounted or side mounted (though near the front edge).24 There any many other requirements for fountains, and there are similar specifications for virtually every other part of a facility: toilets, doorways, ramps, aisles, walkways, counters, parking spaces, telephones, seating, etceteras.25 In most cases, there is either an apparent violation or not, depending on the specifications (though an entity can always argue that the existing condition is an "equivalent facilitation.")26 Given the number of regulations and the degree of their specificity, it is not difficult to find an apparent violation.
It is in this area where Titles II and III of the ADA most diverge from Titles I. It also the area where an employment attorney will likely feel least comfortable. When dealing with these types of construction issues, it is advisable to retain a competent access expert or architect. Frequent consultation with a construction attorney familiar with the application of, and interaction between, state, local, and federal building codes may also prove invaluable.
The Class Action Angle
Because Titles II and III are geared toward providing a general level of access to large constituencies, they are often brought as class actions. Employment cases under the ADA, on the other hand, are rarely appropriate for class action resolution. As noted earlier, every disabled person's impairment is unique, and the nature and extent of the alleged disability often has bearing on the type of accommodation that might be reasonable. Thus, unless a general employment policy is challenged, such as rule prohibiting one-eyed persons from driving heavy commercial vehicles, the case will not be an appropriate class action vehicle. Access cases, on the other hand, always have class action potential. Steps up to a restaurant will generally prevent all nonambulatory persons from entering - regardless of the specifics of their disability. Employment attorneys practicing in this area should be aware of this possibility, and have the relevant class action experience.
Conclusion
The similarities among Titles I, II and III of the ADA create somewhat of a "siren song" for employment attorneys looking to expand their practices. Some have made this crossover quite successfully, while some have recognized early on that they were out of their element. Just like any other practice area, handling Title II and III cases can be learned. The message here is that just because an employment attorney is familiar with the ADA does not mean that he or she can move directly into these types of cases without understanding the differences, understanding the class action ramifications, and knowing when to consult with design professionals and construction attorneys.
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For more information about the issues covered in this report, please contact Chris Baker in our San Francisco office at 415-369-7201 or at cdbaker@thelen.com or contact your Thelen attorney. For more information about Thelen's Construction and Government Contracts Department, click here.
ENDNOTES
1 42 U.S.C. §12182(b)(2)(A)(ii); 28 CFR
§35.130(a)(7).
2 Johnson v. Gambrinus Company/Spoetzl
Brewery¸ 116 F.3d 1052, 1059 (5th Cir. 1997) (Title I reasonable
accommodation standard is "easily transferable to the Title
III reasonable modification context"); Staron v. McDonald's
Corp., 51 F.3d 353, 355-56 (2nd Cir. 1995).
3 Johnson, 116 F.3d at 1059.
4 29 CFR §1630.2(o)(2); EEOC Technical
Assistance Manual III.3.10.6.
5 42 CFR §36.306.
6 42 CFR §36.307.
7 29 CFR §1630.2(o)(2).
8 Borkowski v. Valley Central School
District, 63 F.3d 131, 138 (2nd Cir. 1995); Staron,
51 F.3d at 356; Vande Zande v. Wisconsin, 44 F.3d 538,
543 (7th Cir. 1994). But see Byrant v. Better Business
Bureau, 923 F.Supp. 720 (D.Md. 1996) (defining reasonable
in relation to whether the accommodation actually works.)
It should be noted that the Byrant definition of reasonable,
at least in the accommodation context, makes little sense.
If an accommodation does not work, it is not truly an accommodation.
9 Vande Zande v. Wisconsin, 44
F.3d 538, 543 (7th Cir. 1994).
10 42 U.S.C. §12182(b)(2)(iv) and (v).
11 42 U.S.C. §12182(b)(2)(A)(iii).
12 42 U.S.C. §12111(10).
13 28 CFR §36.104.
14 42 U.S.C. §12181(9).
15 29 CFR §36.304 App. B.
16 42 U.S.C. §§12111(10), 12181(9).
17 28 CFR §36.104.
18 Zande, 44 F.3d at 542-43 ("Even
if an employer is so large or wealthy . . . that it may not be
able to plead "undue hardship," it would not be required
to expend enormous sums in order to bring about a trivial improvement
in the life of a disabled employee."); Slaby v. Berkshire,
928 F.Supp. 613, 615 (D. Md. 1996) ("Modifications are measured
by a readily achievable standard which balances the cost of construction
and ability to pay against the need of disabled persons at the
facility, so that modifications need only be 'able to be carried
out without much difficulty or expense.'").
19 Zande, 44 F.3d at 543.
20 See Johnson v. Gambrinus Company/Spoetzl
Brewery¸ 116 F.3d 1052 (5th Cir. 1997); Crowder v. Kitagawa,
81 F.3d 1480 (8th Cir. 1996).
21 Crowder, 81 F.3d at 1486.
22 42 U.S.C. §12183(1); 28 CFR §36.401(a); 28
CFR §35.151; 28 CFR §36.401.
23 42 U.S.C. §12183(2); 28 CFR §36.402(a); 28
CFR §36.151.
24 28 CFR Pt. 36 App. A, §4.15
25 28 CFR Pt. 36 App. A; 41 CFR Subpt 101-19.6
App. A.
26 28 CFR Pt. 36 App A §2.2 ("Departures
from particular technical and scoping requirements of this guideline
by the use of other designs and technologies are permitted where
the alternative designs and technologies used will provide substantially
equivalent or greater access to and usability of the facility.").
©1999 Thelen Reid Brown Raysman & Steiner LLP
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