Disability Laws Related to Construction Design - Lessons for Design Professionals

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• Disability Laws Related to Construction Design -
  Lessons for Design Professionals

Larry G. Canada, Esq. Galloway, Johnson,
Tompkins, Burr Smith New Orleans, LA Gulfport,
MS
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The Major Disability Laws

• The Americans With Disabilities Act ADA
• The Fair Housing Act FHA

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THE ADA PROTECTION

• Title I
• Employment Practices
• Title II
• Public Transportation
• Title III
• Public Accommodations

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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)

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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

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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)

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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

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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.

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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

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MAJOR LIFE ACTIVITIES

• PERSONAL HYGIENE
• HOUSEHOLD CHORES
• WALKING
• SEEING
• HEARING
• MANUAL TASKS
• But not related specifically to work

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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 individuals
  disability (302).
• Owners rely on Architects and Engineers for
  Design
• Architects look to ADAAG and DOJ for guidance

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DESIGN AND CONSTRUCT

• Section 303 defines discriminatory acts a
  failure to design and construct facilitiesthat
  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.

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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.

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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.

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PLACE OF PUBLIC ACCOMODATION

• Some places meet the requirement by definition
• Restaurants
• Hotels
• Movie theaters
• Public Airports

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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.

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Fair Housing Act

• Applies to any person whoclaims to have been
  injured by a discriminatory housing practice. 42
  USC Sect 3602(i)(1)
• Discriminatory effect or intent
• Disparate impact
• Section 1982 claim

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FHA

• Multifamily Residential Apartment Complexes
• Must be accessible to persons with disabilities
• Ground floor units
• Common areas

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Issues can include

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

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So what does it matter to you

• Disability Groups
• Individuals
• DOJ
• Direct action
• Intervention
• One case can lead to many others

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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

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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

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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.

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Sample Matrix Items contd

• 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.

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Sample Matrix Items contd

• 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.

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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

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• 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

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• 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.

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What they may allege

• That your design did not follow appropriate
  guidelines
• That even if designed appropriately, it wasnt
  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

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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

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Lawsuit

• Suit will follow if you dont 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

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• It will be very expensive to fight the DOJ
• Attorneys fees, expert fees, remediation costs
• You likely have a deductible and limited policy
  DOJ doesnt
• DOJ will negotiate to resolve the suit, they
  dont 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

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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

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Equal Rights Center case

• Owners 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

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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

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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

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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

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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

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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
• The Neverending Story