Disability Laws Related to Construction Design - Lessons for Design

Professionals

Larry G. Canada, Esq.

Galloway, Johnson, Tompkins, Burr & SmithNew Orleans, LA; Gulfport, MS

The Major Disability Laws

The Americans With Disabilities Act – “ADA”

The Fair Housing Act – “FHA”

THE ADA PROTECTION

Title I Employment Practices

Title II Public Transportation

Title III Public Accommodations

Title I - Employment Discrimination

“No covered entity shall discriminate against a qualified individual with a disability because of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.”

42 USCA §12112(a)

COVERED ENTITY

Who is a “covered entity” under Title I? Business that affects commerce 15 or more employees Not a private club or labor organization

QUALIFIED INDIVIDUAL

An individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.

42 USC § 12111(8)

BYRNE v AVON PRODUCTS

Employee wanted accommodation by allowing him not to work

Court held he was not a qualified individual because he was incapable of performing essential functions of the job

DISABILITY

How does one measure disability? “a physical or mental impairment that

substantially limits one or more of the major life activities of such individual.”

TOYOTA V. WILLIAMS

Determination of “disability”. Impairment ≠ disability Must show impairment substantially

limits a “major life activity” “Major life activity” = activity of central

importance to daily life

MAJOR LIFE ACTIVITIES

PERSONAL HYGIENE HOUSEHOLD CHORES WALKING SEEING HEARING MANUAL TASKS

But not related specifically to work

Title III – Accessibility and Barriers

Illegal for owner, lessor or operator of a place of public accommodation to discriminate against an individual on the basis of the individual’s disability (302).

Owners rely on Architects and Engineers for Design

Architects look to ADAAG and DOJ for guidance

“DESIGN AND CONSTRUCT”

Section 303 defines discriminatory acts “a failure to design and construct facilities…that are readily accessible to and usable by individuals with disabilities.

Initially, Courts read 303 as requiring a design professional to design AND construct a project for application.

ELLERBE BECKET I

Sued by Paralyzed Veterans of America – DOJ intervenes

Court holds 302 only applies to owners, lessors and operators of buildings

Court reasons that 303 interprets 302 and thus only applies to owners, lessors and operators

No remedy against a design professional unless they designed AND constructed the project.

JOHANSON V. HUIZENGA

DOJ intervenes -Again Motion to Dismiss based on previous

success – Different result “if architects are not liable under the

ADA, then it is conceivable that no entity would be liable for construction of a new commercial facility which violates the ADA.”

PLACE OF PUBLIC ACCOMODATION

Some places meet the requirement by definition

Restaurants Hotels Movie theaters Public Airports

Is It or Not?

Model home Yes, if it contains a sales office ATM machine Yes Foreign Cruise ship Yes, but only public areas, and only

when in US port.

Fair Housing Act

Applies to “any person who…claims to have been injured by a discriminatory housing practice.” 42 USC Sect 3602(i)(1) Discriminatory effect or intent Disparate impact

Section 1982 claim

FHA

Multifamily Residential Apartment Complexes Must be accessible to persons with

disabilities Ground floor units Common areas

Issues can include

Parking lot accessibility Pedestrian accessible routes Accessible Kitchens and Bathrooms Maneuvering Clearance Light switches Ramp and sidewalk slopes Etc, etc, etc

So what does it matter to you

Disability Groups Individuals DOJ

Direct action Intervention

One case can lead to many others

Case Study

DOJ involved in suit against Owner/developer in TN

Allegations of violations of FHA and ADA

Discovery suggests Owner has at least 9 other apartment complexes in three states

The Inspection

First thing that will happen will be an inspection/visit

If DOJ, they will have a Design Professional visit the site and take pictures and measurements

Any violations will be documented and placed in a matrix

Sample Matrix Items

III.A.1.a Building #4, Apartment 101Primary entry door had knob hardware provided, 0402. Replace knob hardware with lever type.

III.A.2.b Building #1, Apartment 103Primary entry door had an abrupt level change of 7/8", 0454. Bevel to 1/4" max abrupt rise.

Sample Matrix Items – cont’d

VIII.A.1 There is a lack of an accessible pedestrian approach route from the public street, to all ground floor units as there are no sidewalks on either side of the approach drive at the complex entrance that link to complex sidewalks, 9909, 9594, 9597, 9603, 9611, 9612. ANSI 4.3.2. Add ANSI compliant sidewalk and curb ramp from public street to connect with sidewalk at west side of south entrance to property.

Sample Matrix Items – cont’d

Building #7 - NorthThe concrete approach walkway at the north side of the building, to the left of the Vestibule, had a cross slope of 4.9%, 9696.

The Notification

The DOJ will then send a letter to the targets: Owner, Architect, Engineer

Letter will outline the deficiencies and violations they found and ask you to enter comment/respond to their proposed consent agreement

“The Department of Justice has completed an investigation under the FHA. Based on the results of that investigation, the Assistant Attorney General for the Civil Rights Division has authorized the Housing and Civil Enforcement Section to file a complaint …against…”

The United States is prepared to file this complaint. However, we are willing to refrain from doing so for a short period of time if the Defendants are interested in pursuing negotiations to resolve this matter.”

What they may allege

That your design did not follow appropriate guidelines

That even if designed appropriately, it wasn’t built correctly and thus is a violation

That if designed inappropriately, and design not followed, still a violation

You are responsible for all design issues, no matter what your scope of work is

Response to Letter

Notify your Professional Liability Insurer immediately

Retain counsel that is experienced in dealing with such matters - This is not your normal law suit

The DOJ has no sense of humor and will not simply go away

Lawsuit

Suit will follow if you don’t agree to a consent judgment

Owner and design professionals will be sued

Owner may file cross claim or third party action against the design professional

$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$

It will be very expensive to fight the DOJ Attorneys fees, expert fees, remediation costs

You likely have a deductible and limited policy – DOJ doesn’t

DOJ will negotiate to resolve the suit, they don’t want to try them, but will

Negotiate in good faith, but be ready to litigate DOJ does settle portions of a suit, but not often

Owner Suit

Two scenarios DOJ sues Owner and Designer, Owner

files cross-claim seeking indemnity/contribution

DOJ sues Owner who settles, Owner files subsequent suit seeking damages paid to remediate

Equal Rights Center case

Owner’s case against design professional is preempted by federal law

Federal Courts have found that FHA and ADA preempt state law claims for indemnity, breach of contract and such

Independent duty on Owner to follow ADA and FHA that is not deligible

Baltimore Neighborhoods, Inc v. Rommel Builders, Inc

-Nonprofit equal rights group sues builder for violation of FHA

-Not always the DOJ who sues you

-Issue of joint and severable liability

-Court suggests that one must participate in wrongdoing

Barker v. Niles Bolton

Suit against designer for various violations of FHA

Designer dismissed Contract limited design services and

excluded civil engineering Did not design the deficient sidewalks Was not a participant in wrongdoing

The Matrix, Negotiation and Remediation

The violations will be listed in a matrix by the DOJ, with an expert report, pictures and specific statements of voilations

The DOJ will allow for certain variations of standards

A proposed remediation will be offered and negotiated

The Matrix, Negotiation and Remediation

Matrix as negotiated must be remediated at cost of defendant

Aggrieved Persons fund – to compensate anyone found to have been discriminated against because of design/construction

The Consent Judgment

Besides the remediation and aggrieved persons fund, will include Continuing Education of FHA, ADA Reporting requirements Production of past designs Production of future designs

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