5 Hot Spots for ADA Lawsuits and How to Prevent Them

02/27/2017 | By Janelle Penny

How vulnerable is your building to an accessibility lawsuit?

Do all of your building’s public spaces comply with ADA requirements?

You might be certain that people with disabilities can navigate your facility with ease, but total compliance with the Americans with Disabilities Act is surprisingly rare. You’re likely losing out on people who otherwise want to engage with your organization, not to mention placing your building on shaky legal ground.

“You’re probably related to, are friends with or have something in common with someone who has a disability. As of the 2010 census, 18% of our population is disabled,” explains David Meihls, Principal Consultant for ADA Consultants of Indiana. Meihls is also a C7 quadriplegic who has visited non-compliant buildings as both a consultant and a consumer. “If your business isn’t compliant, you’re missing out on a potential sales growth of 18% – and you’re also holding your breath and hoping that nobody sues you.”

These five areas host some of the most common violations. Scope them out to make sure you’re not setting yourself up for a lawsuit.

1) Entrances and Routes

Can someone using a wheelchair or scooter get into your building? If your entrances are only accessible by stairs, you have a problem on your hands that a makeshift plywood ramp won’t solve.

“If people can’t get into your building because you have steps, you have nothing. The second priority is access to the goods and services you provide,” notes William Endelman, Principal and Accessibility Expert at Endelman & Associates, an accessibility consultancy that developed audit software to propose solutions and ballpark costs for remedying ADA violations. “We often see photographs of people who try to put a ramp up the stairs, and it has some enormous slope that wheelchair users wouldn’t be able to use. You need to do some design and get an architect or civil engineer to implement a ramp system, platform lift or elevator.”

This applies even if your building was built before the ADA was established, says Meihls. Buildings are required to keep up with evolving ADA standards wherever reasonably possible.

“I see it all the time when I go to new businesses or restaurants with my family or friends,” Meihls explains. “A new place just opened up, but it’s in a building that’s 30 years old and has steps at the front door. They think there’s a grandfather clause protecting them, but there’s not.”

2) Parking Areas

Accessible parking spaces seem uncomplicated, but they frequently trip up building owners who don’t realize that there’s more to parking stalls than just painting the International Symbol of Access on the ground. Access aisles where wheelchair users can enter and exit vehicles are particularly prone to issues, Meihls observes.

“The aisle has to be connected to an access route that leads to the entrance of the building from the parking space without going into the path of traffic,” explains Meihls. “This is a notorious problem in almost every facility, even new construction. Take a look at the box stores you have in your area and see whether or not there’s clearly an access route leading from their parking to the front door. It’s almost always a no.”

The curb ramp at the head of an access aisle, which helps a wheelchair user move from the aisle to the walkway system, is another common pitfall, adds Endelman.

“More often than not, the slopes of the curb ramp and the side flares, the angled portions on the side, are steeper than the maximum of 8.33%,” Endelman explains. “Frankly, even if it’s designed correctly on drawings, workmanship problems during construction cause a lot of issues. That’s the real challenge – first it has to be designed right, and often it’s not. Then it has to be built right, and that can go wrong too.”

Slope issues can plague the rest of the parking spot too, Endelman adds: “With parking stalls, even if they’re the right dimension and correctly striped, we see a tremendous amount of stalls that exceed the maximum slope of 1:48. That’s either because the grading wasn’t done well or because it’s very hard to get asphalt paving level. We also find that catch basins and drains are put in near the stalls – exactly where you don’t want them – and there tends to be a steep slope toward the drain.”

What’s Wrong with This Building?

3) Restrooms

Restrooms are tough to get right due to the sheer number of requirements for those spaces, Endelman notes.

“Restrooms practically everywhere have issues, mainly because restrooms have maybe 40 different things you have to get right,” explains Endelman. “Part of the problem is that what seems like a simple variation on height or distance can be hard to fix. In addition to the cost of fixing it – which will end up occurring in some kind of settlement – there will also be financial penalties and the cost of attorney fees and experts. It gets very expensive when you get a complaint, so it’s much better to take a proactive approach and do an ADA survey.”

Restroom-related violations often fall into one of these categories:

Toilet stalls: The placement and location of dispensers, grab bars and other toilet accessories – not to mention the toilet itself – frequently causes trouble for building owners. “The most common ones we see are the location of a toilet center line in relation to a side wall,” says Endelman. “It’s supposed to be 16 to 18 inches in the new standard and often they’re off from that, which causes issues with the proper placement of grab bars to use the toilet. The width of an accessible stall is often wrong as well.”

Sinks: “Most sinks are not compliant,” says Meihls. “Check the sinks in your restroom and breakroom – they’re required to be a maximum of 34 inches high.”

The height can be thrown off by simple design choices like fixtures, adds Endelman: “Often we’ll find that the countertop is 34 inches high, but it’s a top-set lavatory, and that adds another half-inch to the height. Simple things like that can go wrong.”

Room size: Restrooms need at least 60 inches of uninterrupted space for wheelchair users to maneuver around, notes Mark Tudor, Certified Access Specialist at ADA Compliance Professionals. A restroom that doesn’t comply with this basic requirement can’t be fixed easily or inexpensively, causing its owner untold headaches if the non-compliance leads to a lawsuit.

Additional resources on ADA compliant restrooms can be found here

4) Accidental Barriers

Some barriers to access result from deferred maintenance rather than being designed into the building. For instance, a perfectly designed accessible parking stall becomes non-compliant when the striping fades too much to be read or when the blue sign at the head of the parking space is vandalized or stolen, Tudor explains: “I’ve seen a lot of parking lots that have deferred maintenance for so long that you can barely see any of the lines or signs.”

Door pressure and speed are both regulated by the ADA so that doors are easy enough to maneuver and don’t open or close too fast, but over time they may need some maintenance to bring them back into compliance, adds Tudor. Employee training can also play a role, so periodically review all spaces to make sure people aren’t accidentally creating barriers.

“If you have a mop bucket that’s left in the wrong place or high chairs are stacked in the wrong spot, for example, you don’t have a big enough maneuvering space anymore,” Tudor says. “In restaurants, one common problem is that the lower section of service counters, which is intended to let someone in a wheelchair wheel up to it and sign a credit card slip, will be non-compliant because of the way staff is using it. People will put a cash register or a stack of menus in that area. That’s just a lack of knowledge and training.”

5) Misunderstanding the Law

Building owners frequently confuse ADA mandates with building code, Endelman says. Code compliance improvements are only required if you’re substantially altering a space or building a new one, but ADA compliance is mandatory even if your building was constructed before the requirements became law.

 “If you have an older building, you should be budgeting dollars every year to remove barriers so that your facility becomes accessible,” Endelman says. “Furthermore, the obligation to remove barriers is unrelated to alteration projects. I have clients say, ‘We’re going to renovate this part,’ and they think they don’t have to deal with the serious issues in another part of the building because they’re not renovating it. It’s a separate requirement to remove barriers if that is readily achievable, which means without great expense or difficulty – and of course, no one can define what that is. People usually define it as ‘I don’t want to spend that much money,’ but that’s not much of a standard. The law is approximately 28 years old now – if you had a complaint and an attorney asked what you’ve done over the last 28 years to make your facility more accessible, and your answer is nothing, that puts you in a weak position.”

This requirement applies to all spaces open to the public, even for spaces that only occasionally have outside visitors, Meihls adds.

“People often think the ADA is about building codes, but it’s about civil rights. Civil rights apply to everybody,” Meihls explains. “If one person from the public is allowed into your place of business, you are required to be ADA compliant. That applies to all but two groups, religious organizations and exclusive clubs that have their own buildings. However, as soon as the church rents itself out for a wedding or the club has a benefit where they want non-members to come in, the ADA applies to them fully, even if it’s just one time.”

Get on top of your facility’s accessibility problems before they become too costly by making a proactive improvement plan, Tudor recommends. Find some examples of places where your organization is vulnerable to an accessibility lawsuit to get decision-makers on board, then start finding low-hanging fruit to help improve accessibility without breaking the bank.

“Replacing old knob-style door hardware with level-style hardware is pretty straightforward,” Endelman suggests. “Restriping a parking lot and providing a vertical pole sign at the proper height is too.”

Bring in an accessibility consultant to conduct a survey of your building and provide recommendations and cost estimates. In addition to demonstrating your facility’s weak points, the survey also helps show that your organization is already taking steps to addressing accessibility barriers, which could help if a lawsuit does crop up.

“Set up some policies, practices and procedures in the meantime. Making sure employees know not to restrict someone with a service animal is a perfect example,” Tudor says. “Be as proactive and compliant as you can given the financial situation you’re in.”

Janelle Penny janelle.penny@buildings.com is senior editor of BUILDINGS.


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