Disability Laws Related to Construction Design - Lessons for Design Professionals

1. Disability Laws Related to Construction Design - Lessons for Design Professionals Larry G. Canada, Esq. Galloway, Johnson, Tompkins, Burr & Smith New Orleans, LA; Gulfport, MS

2. The Major Disability Laws • The Americans With Disabilities Act – “ADA” • The Fair Housing Act – “FHA”

3. THE ADA PROTECTION • Title I • Employment Practices • Title II • Public Transportation • Title III • Public Accommodations

4. 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)

5. 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

6. 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)

7. 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

8. 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.”

9. 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

10. MAJOR LIFE ACTIVITIES • PERSONAL HYGIENE • HOUSEHOLD CHORES • WALKING • SEEING • HEARING • MANUAL TASKS • But not related specifically to work

11. 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

12. “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.

13. 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.

14. 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.”

15. PLACE OF PUBLIC ACCOMODATION • Some places meet the requirement by definition • Restaurants • Hotels • Movie theaters • Public Airports

16. 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.

17. 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

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

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

20. So what does it matter to you • Disability Groups • Individuals • DOJ • Direct action • Intervention • One case can lead to many others

21. 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

22. 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

23. 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.

24. 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.

25. 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.

26. 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

27. “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…”

28. 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.”

29. 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

30. 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

31. 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

32. $$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$ • 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

33. 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

34. 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

35. 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

36. 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

37. 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

38. 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

39. 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