ADA: New Civil Rights Law Will Affect Development

On January 26th the Americans with Disabilities Act of 1990 (ADA), meant to prevent discrimination against an estimated 40 million Americans with disabilities, went into effect. 

While the ADA includes prohibi­tions against discrimination in real estate leasing and sales, and require­ments for equal opportunity in em­ployment, programs, and services, this article focuses on the ADA’s provi­sions that affect the design, construc­tion and alteration of new and exist­ing buildings. 

Design for “New” Construction 

The ADA requires that all newly constructed public accommodations and commercial facilities be designed and constructed so they are readily accessible and usable to persons with disabilities. Since “public accommodations” include almost every type of building which is open to the general public, and “commercial facilities” are defined as any non-residential building, the ADA covers virtually every type of privately owned, non­residential building. 

The ADA’s design guidelines for “new” buildings will become effec­tive for all covered buildings designed and constructed for fust occupancy after January 26, 1993. However, if the last permit for a building was filed before January 26, 1992, that building is not covered by the “new” con­struction guidelines even if con­struction is not completed until after January 26, 1993. If the last permit is issued after January 26, 1992, then the building will be covered only if the first certificate of occupancy is issued after January 26, 1993. Both conditions must exist in order for a “new” building to be covered. 

However, if the building is a “public accommodation,” it will, upon completion, become subject to the ADA’s retrofit provisions for exist­ing buildings (discussed below). It may therefore make practical sense for owners of public accommodations last permitted before January 26, 1992, or planned for legal occupancy prior to January 26, 1993, to make the nec­essary revisions now to comply with ADA so as to avoid the risk of having to make more costly “retrofit” alter­ations later. 

Under the “new” construction re­quirements of ADA, buildings must be designed to allow persons with disabilities to approach the building from all public streets and parking lots, and to enter and use the building on an equal, non-segregated basis with the rest of the public. Additionally, all employee work areas and common areas must be designed and con­structed so they can be approached, entered, and exited by persons with disabilities. 

It is not necessary that all portions of a building be readily accessible to and usable by persons with disabili­ties. However, a reasonable portion of all similar facilities serving identical functions must comply. 

Complying with the ADA 

Some sites are exempt from the “new” construction requirements of the ADA where compliance is “struc­turally impracticable.” However, this exception will only be allowed in rare circumstances where compliance is virtually impossible, as in the case of a building designed for construction on stilts in a marshland. The mere existence of steep or hilly terrain will not qualify for the “structural impracticability” exemption.

The design standards for “new” construction are set forth in the ADA Accessibility Guidelines (ADAAG) published in the Federal Register on July 26, 1991. The ADA is not a building code, though it is being incorporated as such by many stares. As such, it is neither required nor anticipated that the ADA will be en­forced by local building departments or inspectors. The ADA is a civil rights law; although enforcement is authorized by the Attorney General, it will be effected primarily through complaints and civil suits by private citizens and public interest groups. 

Public Accommodation Retrofit 

In addition to these new construc­tion requirements, the ADA also re­quires that after January 26, 1992, all private owners of public accommodations must, to the extent “readily achievable,” remove all architectural and communication barriers to per­sons with disabilities. Owners of commercial facilities will not be sub­ject to the mandatory “retrofit” re­quirements of ADA; this requirement applies only to public accommoda­tions. 

“Readily achievable” means that barrier removal can be carried out “without much difficulty or expense” and “without significant loss in sell­ing or serving space.” The Depart­ment of Justice will decide what is “readily achievable” on a “case-by-case” basis, taking into consideration the total financial resources of the owner. 

In the case of owners of public accommodations with smaller re­sources available, the extent of man­datory barrier removal may include adding such “readily achievable” design features as ramps, curb cuts, rearrangement of furniture, raised letter markings, or creation of special parking. Firms viewed as having larger financial resources may be re­quired to make more substantial changes in their structures. 

If any means for making a public accommodation accessible are not “readily achievable,” then the owner of the public accommodation must provide alternative services, such as rides or clerk assistance. 

Remodeling and Alteration 

The ADA also requires that any remodel, renovation or alteration begun after January 26, 1992 to a public accommodation or commercial facility must, to the “maximum extent feasible,” include a general upgrad­ing of the alteration area to the new ADA Guidelines for accessibility and usability. 

Unlike the “readily achievable” standard applicable to the previously described “retrofit” alteration re­quirements of the ADA, the phrase “maximum extent feasible” does not appear to be a standard based on relative cost or financial resources. Rather, any upgrading which is tech­nically feasible to complete probably will be required.

If the remodel or alteration is to a “primary function” area (that is, an area used for a major activity of the facility), then not only the alteration area itself, but also the path of travel to the alteration area and the restrooms, drinking fountains, and telephones must, in general, be made accessible and usable. 

Employment Practices 

Effective July 26, 1992, theADA’s employment practices go into effect. These practices cover job application procedures, hiring, firing, advance­ment, compensation, training and other terms, conditions and privileges of employment and all employment related activities. The employment provisions will require that employ­ers make “reasonable accommoda­tions” in the workplace for employees with disabilities, unless such “reason­able accommodations” would result in “undue hardship” to the employer. 

The intent of these provisions is to require employers to give equal op­portunity in the work area to persons with disabilities. There are, however, no specific design standards, as there are in the other provisions of the ADA discussed above, as to what constitutes a “reasonable accommodation,” and there is no standard for determining “undue hardship.” 

As already mentioned, the design and construction provisions of the ADA require that “new” construction be designed and constructed to pro­vide entry and exit access to all em­ployee work areas. The employment provisions of the ADA, which become effective July 26, 1992, will further require that “reasonable accommoda­tions” be made for employees. This may include further alterations for maneuverability and providing ad­justable fixtures and equipment. 

The California Response 

The California Office of the State Architect (OSA) has been revising prior state regulations on accessibil­ity to bring state standards into con­formity with the ADA’s generally more stringent rules and guidelines. These new State standards will eventually become part of a new State Building Code to be adopted this year. 

However, even after the new California standards are adopted, you cannot disregard the ADA: 

First, compliance with California Standards will not be considered as qualifying for compliance with ADA until “certification” is completed by the Department of Justice, for which no date has been set. Moreover, “cer­tification” only creates a rebuttable presumption of compliance with ADA. Consequently, even after certification, one could be in compli­ance with State law and still be in violation of ADA. 

Second, although the proposed California standards are generally at least as stringent as ADA, in those circumstances where the ADA’s de­sign guidelines are more stringent, the ADA must be followed. 

Third, because the “coverage” language contained in the ADA dif­fers from the language in the proposed CSAS revisions, certain types of construction not covered by the CSAS may be covered by the ADA. For example, the ADA’s requirement for owners to “retrofit” existing buildings is not present in the proposed state revisions. Similarly, there may be certain “exemptions” under the final state law which may not qualify as “exemptions” under ADA. 

Further Information 

For more detailed information on the ADA, the U.S. Department of Justice has a number of explanatory publications which can be obtained at no cost. The office of the State Architect also will make available to you, at no cost, copies or the proposed state revisions. 

While this article can only sum­marize the ADA, it is crucial to edu­cate yourself on this complex law that will affect property owners, develop­ers, and local governments for years to come.