Written by John McGovern
The last several years saw a different approach to enforcement of the Americans with Disabilities Act (ADA). The emphasis in Washington, D.C. was on deregulation, and an administrative reduction in enforcement staff at the U.S. Department of Justice (US DOJ) that left fewer investigators to handle the same number of complaints.
The spirit of the ADA remained in place though, and we see that in some 2021 settlement agreements that have been released. This short article will discuss how the ADA is enforced, and highlight some proactive steps that can keep your business or local government on the right side of this federal civil rights law.
For businesses, nonprofits, and local governments, there are three principal means of enforcement. There is a fourth for units of local government, and we start with that. The 35.107 Internal Complaint Process requires states, counties, cities, villages, park districts, school districts, townships, and all other forms of local government with 50 or more employees to have an internal process for the ”prompt and effective” resolution of ADA complaints. We suggest this be called an Access and Inclusion Solutions Process, because that’s what it is…a search for solutions. There is no requirement to pay legal fees or damages, just solve the problem.
Most readers can guess the other methods. A person with a disability can file a lawsuit in Federal District Court. A person with a disability can file an administrative complaint with a federal agency that has expertise regarding the complaint. For example, the DOJ would hear policing complaints and parks and recreation complaints, and would be resolved by the Department of Interior.
There is also a DOJ program called Project Civic Access (PCA). These begin with an investigation, often lasting four years, and are followed by a settlement agreement requiring all remedial work to be completed in three or four years, a tall order for any entity.
Don’t forget the states! The ADA requires businesses, nonprofits, and governments to adhere to state access requirements if they are more stringent. For example, new playgrounds in Massachusetts cannot have engineered wood fiber surfaces. Here in Illinois, the 2018 Accessibility Code is broader than the federal 2010 Standards, and applies to trails, beaches, campsites, picnic areas, and viewing areas.
The most recent PCA Agreement is with the City of Killeen, Texas. It requires, amongst many things, that the City create a plan for assessing sidewalks and to implement that assessment within 33 months. Also a requirement for the City is to make retrofits to some new construction that fails to comply with the federal and state accessibility standards, including parks and facilities. The agreement notes some policy changes, including publishing a notice to residents regarding ADA compliance. In addition, the website is to be made accessible, and all City staff are to receive ADA training. And last, the City must name an internal ADA Coordinator, and retain an Independent Licensed Architect that can certify retrofits to parks and facilities are indeed compliant.
The DOJ filed a statement of interest in June in Pennsylvania Federal District Court with interesting implications. Aimbridge Hospitality owns and operates hotels throughout the United States. A wheelchair user sued because the bed was too high for him to transfer from his wheelchair onto the bed. Aimbridge says there is no foul here because the design standards do not dictate bed height. Think about this from a practical perspective: What good is the bed and hotel room if the wheelchair user guest finds the bed to be too high? The DOJ refers everyone that back in 2010, it chose not to regulate bed height, but specifically reminded property owners of the obligation to make reasonable modifications, such as lowering bed height, when asked to do so.
Our Accessibility Practice includes a Certified ADA Coordinator, a Registered Accessibility Specialist, a Certified Access Specialist, a Certified Therapeutic Recreation Specialist, an MSW, and an attorney licensed in Illinois that specializes in ADA compliance. And, the WT Group engineers and architects work on accessibility projects in their own work and with the Accessibility Practice. There is not a situation you’ll face that we can’t solve. For more information, contact John McGovern at jmcgovern@wtgroup.com.
