disability laws related to construction design - lessons for design professionals
DESCRIPTION
Disability Laws Related to Construction Design - Lessons for Design Professionals. Larry G. Canada, Esq. Galloway, Johnson, Tompkins, Burr & Smith New Orleans, LA; Gulfport, MS. The Major Disability Laws. The Americans With Disabilities Act – “ADA” The Fair Housing Act – “FHA”. - PowerPoint PPT PresentationTRANSCRIPT
Disability Laws Related to Construction Design - Lessons for Design
Professionals
Larry G. Canada, Esq.
Galloway, Johnson, Tompkins, Burr & SmithNew Orleans, LA; Gulfport, MS
The Major Disability Laws
The Americans With Disabilities Act – “ADA”
The Fair Housing Act – “FHA”
THE ADA PROTECTION
Title I Employment Practices
Title II Public Transportation
Title III Public Accommodations
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)
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
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)
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
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.”
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
MAJOR LIFE ACTIVITIES
PERSONAL HYGIENE HOUSEHOLD CHORES WALKING SEEING HEARING MANUAL TASKS
But not related specifically to work
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 individual’s disability (302).
Owners rely on Architects and Engineers for Design
Architects look to ADAAG and DOJ for guidance
“DESIGN AND CONSTRUCT”
Section 303 defines discriminatory acts “a failure to design and construct facilities…that 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.
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.
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.”
PLACE OF PUBLIC ACCOMODATION
Some places meet the requirement by definition
Restaurants Hotels Movie theaters Public Airports
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.
Fair Housing Act
Applies to “any person who…claims to have been injured by a discriminatory housing practice.” 42 USC Sect 3602(i)(1) Discriminatory effect or intent Disparate impact
Section 1982 claim
FHA
Multifamily Residential Apartment Complexes Must be accessible to persons with
disabilities Ground floor units Common areas
Issues can include
Parking lot accessibility Pedestrian accessible routes Accessible Kitchens and Bathrooms Maneuvering Clearance Light switches Ramp and sidewalk slopes Etc, etc, etc
So what does it matter to you
Disability Groups Individuals DOJ
Direct action Intervention
One case can lead to many others
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
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
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.
Sample Matrix Items – cont’d
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.
Sample Matrix Items – cont’d
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.
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
“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…”
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.”
What they may allege
That your design did not follow appropriate guidelines
That even if designed appropriately, it wasn’t 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
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
Lawsuit
Suit will follow if you don’t 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
$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$
It will be very expensive to fight the DOJ Attorneys fees, expert fees, remediation costs
You likely have a deductible and limited policy – DOJ doesn’t
DOJ will negotiate to resolve the suit, they don’t 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
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
Equal Rights Center case
Owner’s 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
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
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
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
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
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