The Americans with Disabilities Act (ADA) is a sweeping civil rights legislation that increases contractors’ obligations and risks. Applying civil rights legislation in the context of building and code requirements is inherently uncomfortable and difficult. The ADA also creates statutory causes of action and remedies. Contractors need to take a broad view to evaluate and minimize the liability risks posed by the ADA.

The ADA was enacted: “To provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” The broad nature of the statute is further intended, “to invoke the sweep of congressional authority, including the power to enforce the 14th Amendment and to regulate commerce, in order to address the major areas of discrimination faced day to day by people with disabilities.”

The ADA applies to all “public accommodations,” which are broadly defined. Given its sweeping intent and the broad definitions of “public accommodations” found within the ADA, contractors should probably view any structure that invites the public to enter as a “public accommodation” subject to ADA.

The “sweeping” nature of ADA has important ramifications. Courts interpreting such legislation tend to resolve questions by resorting to this express purpose of Congress. Courts thus tend to construe the statute in a broad fashion.

Prohibited activities

The ADA provides that no individual shall be discriminated against on the basis of disabilities from the full and complete enjoyment of the goods, services, facilities, advantages or accommodations of any public accommodation. For public accommodations, discrimination pursuant to the ADA includes the failure to remove architectural barriers in existing facilities where such removal is “readily achievable.” With respect to new construction, it includes the failure to “design and construct” new facilities that are “readily accessible to and usable by individuals with disabilities.” The renovated portions of facilities are also subject to compliance with the “new construction” requirements of the ADA.

Injunctive relief is available under the ADA, including the issuance of court orders to alter facilities to make them readily accessible. The U.S. attorney general may commence a civil action against a discriminating party upon reasonable cause of belief that a person is engaging in a “pattern and practice” of discrimination. The attorney general may also file suit if particular discrimination “raises an issue of general public importance.” In cases brought by the attorney general, the court may order equitable relief, including making the facility readily accessible and usable to individuals with disabilities. Further, the court may award other relief, including damages to aggrieved parties. The court may assess civil penalties up to $50,000 for a first violation of the ADA and may issue civil penalties of up to $100,000 for subsequent violations.

The ADA expressly provides that civil remedies pursuant to 42 U.S.C. §§ 2000a-3(A) are also available, including injunctive relief. Thus, private litigants may file suit for violations of the ADA. Finally, the court or agency may award, at its discretion, a reasonable attorney’s fee to the prevailing party.

Know the applicable regulations

The ADA directed the Architectural and Transportation Barriers Compliance Board to develop minimum guidelines to provide for accessibility of various structures. The ADA also expressly provided for the U.S. attorney general to promulgate regulations that implement the act. The board created guidelines for design and construction guidance to facilitate accessibility. The Department of Justice (DOJ) in turn adopted these guidelines and reissued its own set of regulations to effectuate Congress’ intent with respect to the ADA/DOJ regulations.

With respect to new construction and renovation, DOJ regulations included an express adoption of compliance with the Standards for Accessible Design developed by the board. Most of the standards developed by the board and incorporated by DOJ into the regulations parallel ANSI A 117.1, the hallmark initial standards for accessible design and construction.

The DOJ regulations and appendices are very detailed and include dimensions and details for various elements of accessible design and construction. Designers and contractors should be familiar with the requirements to minimize potential exposure to claims.

The ADA creates potential risks of liability beyond those in typical contracts, including federal agency investigation, private statutory civil actions and attorney’s fees. Given the potential risks presented by the ADA, contractors working on public facilities need to become familiar with the applicable regulations under the ADA for their specific trade. Meeting the requirements of these regulations is the only way to protect against potential liability under the ADA. EC