Seyfarth Synopsis: Recent guidance from the U.S. Access Board makes it more difficult for businesses to argue that the Accessible Icon constitutes “equivalent facilitation” under the ADA, even though jurisdictions such as New York and Connecticut require the use of this alternative disability access symbol.
As we previously reported, New York State and more recently, Connecticut, passed legislation requiring the use of the “Accessible Icon” in lieu of the traditional International Symbol of Access (“ISA”) in new construction and alterations whenever an accessibility sign is required by code. But Title III of the ADA and the Architectural Barriers Act (“ABA”), which apply to public accommodations facilities and federally-funded facilities, respectively, still require the use of the ISA. Specifically, the ADA and ABA require that the ISA be used to label and provide direction to certain accessible spaces and elements, such as restrooms, parking spaces, and check-out aisles.
This conflict has presented a quandary for businesses: Display the ISA as the ADA requires; display the Accessible Icon, as state or local codes require; or, display both symbols, which would multiply costs, negatively impact aesthetics, and potentially confuse patrons.
Last week, the U.S. Access Board, the federal agency that drafted the ADA Standards for Accessible Design (which the Department of Justice (“DOJ”) incorporated into its ADA Title III regulations) and also sets accessibility standards for federal agencies, issued a Guidance stating unequivocally that “the ISA must be used even where a state or local code or regulation specifies a different symbol.” Although the DOJ, not the Access Board, enforces Title III of the ADA and the ADA Standards for Accessible Design, the Guidance could be considered by a court in a Title III enforcement action, given the Access Board’s relevant expertise.
Is the ISA Really Outmoded?
The Accessible Icon Project began as a “street art” campaign that was apparently intended to replace the “traditional,” static figure displayed in the ISA with a more active, dynamic and positive depiction of individuals with disabilities.
The ISA (left) and the Accessible Icon (right)
The effort to replace the ISA with the Accessible Icon has faced recent hurdles. In May 2015, the Federal Highway Administration (“FHA”) issued an Interpretation Letter stating that the use of alternative symbols of accessibility are not acceptable for traffic control device applications because they are not “unmistakably similar” to the ISA. The agency went one step further, commenting that the use of non-conforming symbols, including “by approval of local authority,” “compromises the enforceability of these devices.” (emphasis added) The Interpretation Letter also noted that the Access Board has not adopted or endorsed any alternative designs.
Access Board: the ISA is Still the Recognized Symbol of Accessibility
The Access Board’s Guidance states that the ISA has become a “worldwide” symbol that “reflects considerable analysis by, and consensus of, an international collection of technical experts,” including the International Organization for Standardization, which is a non-governmental organization that represents over 160 national standard-setting agencies. In addition to the ADA Standards for Accessible Design, the U.S. Department of Transportation’s ADA Standards, ABA, International Building Code (“IBC”), National Fire Protection Association Standards, and ICC A117.1 also require the ISA.
No Endorsement of the Accessible Icon as “Equivalent Facilitation”
Businesses in New York or Connecticut where they are required by new state laws to use the Accessible Icon in new construction and alterations could display the Accessible Icon and take the position that its use satisfies the “equivalent facilitation” provision in Section 103 of the 2010 ADA Standards for Accessible Design. Under Section 103, businesses may use “designs. . . as alternatives to those prescribed [by the ADA], provided they result in substantially equivalent or greater accessibility and usability.” However, no court or agency has ruled on this issue. The Guidance does not comment on whether the Accessible Icon would constitute “equivalent facilitation” but instead defers to the courts, and encourages those advocating for a new symbol to contact the International Organization for Standardization.
The Guidance stresses the value of uniformity and recognition over what some believe is a negative (or at least limiting) depiction of individuals with disabilities. The ISA “promotes legibility, especially for people with low vision or cognitive disabilities,” according to the Guidance. This supports the Access Board’s conclusion that, irrespective of conflicting state or local requirements, businesses must display the ISA where required by federal standards.
Businesses Should Carefully Consider the Use of the Accessibility Icon in Future Projects
The situation is confusing, but one thing is clear: Businesses that do not use the traditional ISA symbol where it is required by federal law face litigation exposure under Title III of the ADA, and the Access Board’s Guidance makes the “equivalent facilitation” argument more challenging. Businesses in New York and Connecticut should seek guidance on whether local permitting authorities have the ability to waive the Accessible Icon requirement, the consequences of not using the Accessible Icon, and the implications of using both the Accessible Icon and the ISA.