The federal Americans with Disabilities Act recently celebrated its 25th anniversary. The Minnesota counterpart, the Minnesota Human Rights Act is older yet, having outlawed discrimination on the basis of disability since 1973.
With such a long history, it would seem that compliance with these anti-discrimination laws would be old news.
However, Minnesota small businesses are experiencing lawsuits alleging violation of federal and state disability laws. Needless to say, the aged ADA has become a hot topic again in Minnesota for business owners and their attorneys.
The ADA applies both to physical and mental medical conditions, and provides protection to persons with disabilities in multiple facets.
Both the federal ADA and the Minnesota Human Rights Act prohibit discrimination on the basis of disability in the full and equal enjoyment of any place of “public accommodation.”
A place of public accommodation includes a business, entertainment, recreation, accommodation, or transportation facility of any kind, whose services are sold or made available to the public, such as restaurants, grocery stores and gas stations.
Much of the recent litigation has focused on the physical accessibility of brick-and-mortar facilities. Both a landlord who owns a building and the tenant who operates the building are subject to the ADA.
When a business opens to the public, it has an obligation to ensure that any customer, employee or potential customer is not faced with barriers preventing access to the business.
Importantly, the ADA was not intended to abate intentional misconduct or malfeasance. Instead, it was enacted to eliminate the effects of “benign neglect” and “indifference.”
Therefore, there is no “bad faith” or “negligence” required for a business to violate the ADA and be subject to a lawsuit. This places business owners in a difficult position, because, as courts have said, “compliance and noncompliance with the ADA is often a matter of inches.”
Who must comply
One common misconception is that a business does not need to be concerned with the ADA until it remodels or makes some type of large alteration to a facility.
The reality is that, even absent new construction or any remodeling, an existing facility is required to comply with the ADA.
Any architectural barriers must be removed to the extent removal is “readily achievable.” The ADA defines readily achievable as “easily accomplishable and able to be carried out without much difficulty or expense.”
Factors to consider if removal is readily achievable are: the nature and cost of the removal, the overall financial resources of the facility, the overall financial resources of the facility’s owner, and the type of operation of the facility.
Examples of readily achievable remedies include installing ramps, repositioning shelves, widening doors, installing full-length mirrors, installing grab bars in toilet stalls, and creating designated accessible parking spaces. These are things that a business should review, regardless of any remodeling projects.
The ADA Accessibility Guidelines, adopted by the federal U.S. Access Board, were most recently published in 2010 and compliance with these standards is required for any new construction or alterations.
New construction or alterations occurring prior to March 14, 2012, are subject to the earlier standards adopted in 1991.
Whether an activity such as a renovation is an “alteration” is not subject to a bright-line test, meaning that the facts and circumstances of each renovation project will determine the extent to which any renovation will need to comply with the 2010 standards.
For example, general maintenance is not considered an alteration so long as it does not affect a facility’s usability. Such maintenance includes minimal activities like repainting, re-roofing, or making a change to the electrical system.
However, some things that would seem to be maintenance have been deemed to be an alteration. If a business restripes its parking lot, that is considered an alteration, and the newly striped/surfaced lot does need to comply with the 2010 standards.
Technical difficulties
Once maintenance is deemed an alteration, the next step is to identify how much of the facility needs to be in compliance with the 2010 standards. In general, only those elements or spaces that are altered are required to comply.
For example, in a restroom where a toilet, faucet controls, and mirror are replaced, the 2010 standards will apply to those new elements. However, the 2010 standards will not apply to elements (such as the sink) that were not altered.
Even if there is an alteration, however, compliance is not required where it is “technically infeasible.” Yet another fact-intensive inquiry, technically infeasible compliance is where the cost or effect of compliance is unrealistic.
For example, if compliance requires removal of a load-bearing member to meet a minimum egress width, that would be technically infeasible. However, compliance is still required to the maximum extent feasible.
One place where businesses sometimes get tripped up is not in design of their building, but in its operation. For example, a bathroom sink may be the appropriate height to allow a wheelchair, but a poorly located trash can would prevent anyone in a wheelchair from using the sink. That would create a potential ADA claim
In addition to issues that might affect a customer’s access, employers also need to be wary of any access issues an employee might have.
Employees must be able to access all necessary areas of the worksite to perform their positions. Any employee who is limited in his or her work because of a barrier that could be remedied may have a valid discrimination claim.
Bottom line, defense of an ADA claim is expensive. Both the ADA and the Minnesota Human Rights Act allow a successful plaintiff to recover attorneys’ fees, and because both are fact-intensive a quick defense is difficult to achieve.
There are numerous resources that provide direction on ADA compliance. Having an architect visit and walk through your facility can provide information on potential barriers that you may not be aware exist.
Additionally, you can speak with your insurance agent about providing insurance coverage for disability-related claims. Finally, you can contact the Minnesota State Council on Disability, at www.disability.state.mn.us.
