Reasonable Modifications

Seyfarth Synopsis: Pennsylvania court rules that a museum violated the ADA when it refused to waive the entry fee for a guest’s personal care assistant. 

A federal district court judge in Pennsylvania court recently held that Title III of the ADA required the Franklin Institute (“FI”) to waive the admission fee for the personal care assistant (“PCA”) of a person with a disability to attend a movie screening at the museum.  Title III of the ADA requires public accommodations to make reasonable modifications to their normal policies practices and procedures where necessary to ensure access for individuals with disabilities, unless doing so imposes an undue burden or fundamentally alters the nature of the goods and services being offered.  The court found that waiving the fee would not pose an undue burden or result in a fundamental alteration in this case.

FI argued that free entry would result in dramatic economic consequences to the museum, including deficits, ineligibility for grants, elimination of services, budget cuts and ultimately layoffs.

The judge disagreed with colorful prose, finding no loss of revenue and nothing more than a de minimus added cost to FI; calling FI’s arguments “worthy of the antagonist in a Dickens novel.”   The judge noted that the museum’s existing practice of providing folding chairs for PCAs to sit next to wheelchair users would not cost the museum any money because the folding chairs were not normally sold to patrons.  The court also noted that FI spends substantial sums on charitable efforts and gives reduced price tickets to people who cannot afford to pay.  The court criticized FI’s argument that parents or babysitters of children must pay for entry, noting that individuals with disabilities are not the same as children.

While a well-heeded cautionary tale, this case is not of universal applicability.  It does not mean museums and other institutions must always let companions in for free.  Rather, places of public accommodation must take their obligation to make reasonable modifications to policies, procedures, and practices seriously, and conduct a meaningful analysis of whether making the modification would really impose an undue burden or result in a fundamental alteration.  The decision also serves as a reminder that disability access defenses are highly fact intensive and cannot be decided early in a case.  The practical approach in some cases may be to make the modification rather than watch fees increase in the process of litigating a case.

Edited by: Minh N. Vu & Kristina Launey

(Photo) BushBy Kevin Fritz

This Sunday, July 26, marks the 25th anniversary of the Americans with Disabilities Act.  In the spirit of anniversary of this important law, here are 25 simple ways to make your business more accessible to customers with disabilities, and provide a great experience for them and their friends and/or family members:

  1. If the main entrance of your business is not wheelchair accessible but there is an alternate accessible entrance, post clear signage by the main entrance giving directions. Also add the International Symbol of Accessibility at the accessible entrance and include key accessibility information about access, parking, or other services on your website (e.g., the rooftop bar is only accessible via stairs).
  1. Keep your lowered accessible counter clear at all times. Do not store or display items on this counter.
  1. Where there are corners, steps, and edges, mark these with high visibility contrasting colored material so that they can be easily seen.
  1. If your business provides table or bar seating, make sure you have accessible seating for wheelchair users. A table that provides space underneath the top that is 30” wide, 17” deep, and 27” high, with a top that is between 28” and 34” from the ground is accessible.
  1. Keep walkways and accessible parking access aisles clear and free from clutter or snow, and make sure your premises are well lit. Keep any bushes, trees, or flower arrangements near your business clipped so there are no low hanging hazards for persons who are blind or have low vision, or overgrown bushes obstructing the path of travel for those using wheelchairs or other mobility aides.
  1. Signage for permanent rooms, such as restrooms, must have braille and raised lettering. The background and foreground must contrast.
  1. Doors that are heavy and hard to open can be very difficult to use for the elderly or people who use wheelchairs or mobility aids. Adjust closers so that the doors require less force to open.
  1. In bathrooms, make sure wastebaskets or other moveable objects do not obstruct clear spaces next to the doors. Similarly, in accessible wheelchair stalls, keep the area around the toilet and under the sink clear.  Doing so ensures that persons using wheelchairs can safely operate the door and navigate.
  1. If your place of business is not accessible for wheelchair users because there are steps at the entrance, consider how you can provide the goods and services to such customers in an alternative fashion (g., personal shopper, home delivery, or home visit service).
  1. Welcome service animals (specifically dogs and miniature horses under the ADA) into your establishment. Read tips on what you can ask to determine if it is a service animal and other tips on service animals here.
  1. When choosing signage, language matters. Instead of signs that use the word “handicapped” –which is considered offensive by many people with disabilities – opt for signs that use the word “accessible.”
  1. Consider how persons with disabilities will be evacuated from your facility in an emergency, and include that procedure in your emergency evacuation plan. Make sure your employees know the procedure.
  1. Use people first language when referring to someone with a disability. Refer to a person as an individual with a disability rather than a “disabled person,” or a “handicapped person.”  In that vein, refer to a person as one who uses a wheelchair (rather than one “confined” to one) or one who is blind (rather than one who “suffers” from blindness).
  1. When speaking with a person with a disability who has a companion, direct your comments to the person with a disability to that person, not the companion – unless specifically instructed otherwise by the person with a disability.
  1. With all written information, structure content in a logical order using plain English and avoiding long sentences.
  1. People who are deaf make phone calls using a telecommunications relay service (TRS). Accept calls made through such services and treat them the same as other calls.
  1. Be prepared to read menus to customers who are blind or have low vision. Posting menus online provides such customers another way of reviewing the menu (using assistive technology such as screen readers) before they visit the restaurant.
  1. Make sure your employees are prepared to interact with customers who are blind or deaf. They should be ready to read written documents to customers who are blind or have low vision and to exchange notes with customers who are deaf, hard of hearing, or have difficulty speaking.  Have a pad of paper handy for this purpose.
  1. People with hearing, speech, or sight disabilities may require extra time or a quiet area to talk with staff. Be patient with the extra attention that might be necessary to understand what is being said and how to assist.
  1. Make sure that your accessible register or checkout lane is always open when the store is open.
  1. Always ask first if a person with a disability needs assistance, never assume.
  1. If a customer who is blind needs to be led to a location in your business, offer the person your arm. Wait for them to accept the assistance.
  1. If a person with a disability requests that you modify a policy or provide additional assistance, consider the request meaningfully. There may be a legal requirement to do it.  For example, if your business requires a driver’s license to rent an item, consider accepting another form of state-issued identification for an individual who is blind or physically unable to drive a vehicle.
  1. If you have a pool lift, make sure it is out and ready to be used (e., battery charged and lift uncovered) at all times when the pool is open.
  1. Customer feedback is a great opportunity to learn about your customers and their thoughts on how accessible your business actually is. Be open to receiving feedback and act on it.  You may be preventing a lawsuit in the process.

These small steps can make a huge difference in the experience that customers with disabilities and their friends and family have at your business, and are sure to result in greater customer satisfaction. 

Edited by Minh Vu and Kristina Launey

By Minh Vu and Paul Kehoe

Since we reported that the Department of Justice (“DOJ”) issued its proposed regulations last month concerning the definition of a “disability” under Titles II (applicable to state and local governments) and III (applicable to public accommodations) of the Americans with Disabilities Act (ADA), we have received a number of inquiries about the regulations’ impact and whether clients need to take any action.  We share here our initial thoughts.

Background and Key Provisions.  The proposed regulations implement the ADA Amendments Act of 2008 (ADAAA) which amended the Americans with Disabilities Act of 1990 (ADA).  Congress passed the ADAAA in response to several court decisions, including from the Supreme Court, that narrowly interpreted the definition of “disability.”   The point of the ADAAA, according to the DOJ, was to “mak[e] it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the statute.”

In March 2011, the Equal Employment Opportunity Commission (“EEOC”) issued its final regulations to implement the ADAAA’s requirements for Title I of the ADA, which prohibits disability discrimination by employers.  These DOJ proposed regulations will implement ADAAA requirements for Titles II and III of the ADA, which prohibit discrimination in state and local programs and by public accommodations, respectively.  DOJ’s proposed regulations closely track the statutory requirements of the ADAAA and the EEOC’s final regulations.

The ADAAA did not change the ADA’s definition of disability, which continues to be: Continue Reading More People Will Be Individuals With a "Disability" Under Proposed Justice Department Regulations

By Minh Vu and Paul Kehoe

Many individuals with disabilities are choosing other power-driven mobility devices (OPMDs) such as Segways™ over traditional wheelchairs and scooters to provide them with enhanced mobility.  In response, as we previously reported, the Department of Justice (DOJ) amended its regulations in 2010 to require businesses to allow the use of OPMDs in their facilities unless the business can establish that the particular OPMD cannot be operated safely within any particular facility.  Three years later, businesses still have very little practical guidance from the courts and DOJ about when they may limit the use of these devices.

The regulations specify that businesses must analyze five factors to determine whether they must allow a particular OPMD to be used in a specific facility, including (i) the type, size, weight, dimensions and speed of the device, (ii) the facility’s pedestrian traffic, (iii) the facility’s design and operational characteristics, (iv) whether legitimate safety requirements can be established to permit the safe operation of another OPMD in that facility, and (v) whether the use of that OPMD creates a substantial environmental harm or conflicts with federal land management laws.  But there is little guidance on how to apply these factors to specific situations.

The DOJ’s position is that “in the vast majority of circumstances,” public accommodations would have to admit Segways™ and other OPMDs.  In its technical guidance document, ADA Update, A Primer for Small Businesses, the DOJ encourages businesses to develop written policies based on these factors specifying when OPMDs will be permitted on their premises and to communicate those policies to the public.  However, it does not give examples of scenarios in which OPMDs can be excluded, other than to say a business may be able to limit OPMD use at certain times of the day when a facility has a high volume of pedestrian traffic.

Continue Reading Do I Have to Let Segways™ Used by Persons With Disabilities Into My Business?

By Minh N. Vu

We often hear from commercial landlords that they are not concerned about whether their tenant spaces are accessible because their leases place the obligation for complying with accessibility laws such as Title III of the ADA on the tenants.  A recent decision from the federal district court in Northern California makes clear that landlords should consider a more proactive approach.

In Shaw v. Kaptan Ghimire, the court restated the basic proposition that while the ADA allows landlords and tenants to allocate the responsibility for complying with the ADA between themselves, landlords and tenants are both liable for violations in leased spaces with respect to persons with disabilities who are denied access.  In addition, the court held that both the landlord and the tenant were responsible for the entirety of the plaintiff’s attorneys’ fees and costs awarded by the court.  The court left open the possibility of an apportionment of awarded fees and costs only in situations where there is significant disparity in the time spent pursuing claims against the various defendants.

The case serves as a reminder that landlords should pay more careful attention to the state of accessibility in their tenant spaces even if their leases have provisions requiring the tenant to indemnify the landlord for any losses and pay its defense costs.  Landlords cannot always rely on their tenants to provide them with a timely or competent defense for a number of reasons.  Some tenants lack the financial resources, diligence, and/or knowledge to retain and manage outside counsel.  Some choose to hire outside counsel who have no expertise in ADA Title III matters.  Faced with litigation deadlines that cannot be postponed, landlords may wind up having to take matters into their own hands and hire their own counsel to represent their interests.  Recouping those fees from tenants can be a challenge.

By Minh N. Vu

Owners of commercial facilities and developers of multifamily housing should take note of an alarming trend:  Some courts are not allowing owners and developers to sue their architects and consultants for designing facilities that do not comply Americans with Disabilities Act (ADA) and Fair Housing Act (FHA) accessibility requirements.

The most recent case on this subject is Rolf Jensen & Assocs. v. Dist. Ct., 282 P.3d 743 (Nev. 2012).  The casino owner sued its ADA consultant under their contract and state law after the Justice Department required the owner to make more than $20 million in retrofits to comply with ADA requirements.  The Nevada Supreme Court dismissed the owner’s claims, finding that allowing these claims to move forward would frustrate the objectives of the ADA.  The court said that allowing an owner to “completely insulate itself” from liability for an ADA or FHA violation by contract or through state common law principles would diminish an owner’s incentive to ensure compliance.  The court emphasized that owners have a non-delegable duty to comply with these statutes that cannot be shifted to third parties.  Although the court did acknowledge that the ADA explicitly allows landlords and tenants to allocate responsibility for violations among themselves, it viewed this explicit exemption as further proof that there was no Congressional intent to allow such allocation between owners and architects/designers.

The Federal Court of Appeals for the Fourth Circuit reached the same conclusion in Equal Rights Ctr. v. Niles Bolton Assocs., 602 F.3d 597 (4th Cir. 2010).  The multifamily housing developer there sued the architect of 15 apartment communities which needed over $2.5 million in retrofits to comply with ADA and FHA requirements.  The Fourth Circuit dismissed all of the owner’s claims against the architects under the same theory that the Nevada Supreme Court adopted.  Federal district courts in Maryland, Mississippi and Tennessee have also dismissed claims by owners against their architects applying the same rationale.

While courts in many jurisdictions have yet to address this issue, property owners may want to rethink how they draft their contracts.  For example, alternative provisions that would require design professionals to share in the responsibility of a non-compliant design — as opposed to assuming all of it under an full indemnification provision — might give owners more options for recourse.  (The primary rational for rejecting the owners’ claims in the Rolf Jensen and Equal Rights Ctr. cases was the fact that enforcing the owners’ contractual rights would shift all responsibility for non-compliance to architects and/or consultants).

In addition to rethinking the contract, these disturbing court decisions also make clear that property owners cannot passively rely on their design professionals to get it right.  We often remind our clients that if all architects actually knew how to design to the federal accessibility standards, we would have very little work to do.  The level of understanding of federal accessibility requirements among design professionals varies greatly.  Thus, it is important for owners to be proactive about accessibility issues.  Designating a point person to oversee accessibility compliance for an entire project, asking the right questions to make sure accessibility is being considered, having plans reviewed by an independent and reputable accessibility specialist, and doing as-built accessibility inspections as soon as the project is completed are some of the ways to achieve this result.  Doing nothing on the front end may prove to be quite – unexpectedly – costly on the back end.

By Eden Anderson

On July 25, 2012, Judge Joseph Spero of the United States District Court for the Northern District of California issued an opinion in Gregory Pilling v. Alameda Park Street Bicycle, Inc., et al., Case No. C-12-02186-JCS which serves as a reminder to all public accommodations of the obligation to make “reasonable modification” to policies, practices, or procedures when such modifications are necessary to provide persons with disability with full and equal enjoyment. 

The plaintiff in the case, a cancer survivor, required the use of a colostomy bag.  He used his bike and train to commute to his job as a street sweeping foreman.  After getting off the train, he would store his bike at a bike storage facility, which was jointly operated by the train and a private entity.   

The bike storage facility had a rule requiring that entry and exit into the facility be accomplished within 10 minutes.  The rule’s purpose was to help deter and detect instances of theft.  The plaintiff requested that the rule be modified to allow him the time he needed (12-18 minutes) to use the restroom while in the facility.  After his request for reasonable modification was denied, he sued alleging claims under the ADA and analogous state laws. 

Judge Spero held that the defendants were required to comply with the DOJ regulation which requires that “reasonable modification in policies, practices, or procedures” be made when necessary to avoid discrimination unless the modification would “fundamentally alter the nature of the service, program, or activity.”  28 C.F.R. § 35.130(b)(7).  That the 10 minute rule was neutral on its face and had a legitimate purpose was no defense.  It should have been modified to allow the plaintiff the time he needed in the restroom. 

Any place of public accommodation should take note of the ruling.  Even if a policy, procedure, or practice seems reasonable and non-discriminatory on its face, the ADA may very well require that it be modified to afford a person with disability full and equal enjoyment. 

We proudly announce the American Hotel & Lodging Association’s publication of the first-of-its kind Americans with Disabilities Act (ADA) Guide for Lodging Owners and Operators, authored by Minh N. Vu with contributions from Karen StephensonKristina Launey, and Laura Robinson.  The AH&LA developed this comprehensive, 80-page, guide to provide owners and operators of places of lodging with an overview of Title III of the ADA and the recent regulatory changes that impact their facilities and operations.   Among the many topics the Guide covers are:

  • Ensuring that facilities are physically accessible to individuals with disabilities;
  • Reasonable modifications to policies, practices, and procedures as necessary to ensure that individuals with disabilities have access to the goods, services, facilities, and amenities that the lodging facility offers;
  • Provision of auxiliary aids and services as necessary, and at no additional charge, to ensure that individuals with disabilities have access to the goods, services, facilities, and amenities that the lodging facility offers;
  • Maintaining a facility’s accessible features; and
  • Ensuring facility employees to know how to interact with individuals with disabilities.

The guide is available both in print and electronic format.

AH&LA members may download the electronic version of the guide for free and purchase the hard copy at a discounted rate.

By Minh N. Vu

Must restaurants, supermarkets, hotels, and other public accommodations allow individuals with disabilities to be accompanied by miniature horses that perform work or tasks related to their disabilities?  In new ADA Title III regulations published on September 15, 2010, the Department of Justice (DOJ) said yes, subject to a few limitations.  According to DOJ, service miniature horses are an alterative to for people allergic to dogs, they live longer, and can be housebroken just like a dog.  Although the miniature horse rule usually surprises people when they first learn about it, it went into effect on March 15, 2011 without much controversy.  Earlier this year, miniature horses used as service animals received media attention after a disabled plaintiff sued two California retail stores that allegedly would not let him in with his miniature horse.

On May 10, 2012, the House passed an amendment to an appropriations bill (H.R. 5326) that bars the use of appropriated funds to implement the miniature horse rule.  It is unclear if the amendment will become law but we will certainly let you know as soon as we hear.  In the meantime, you can read more about the amendment from its author, Rep. Jason Chaffetz, and DisabilityLaw blogger reaction here.