This blog is used with permission from the author. The original post appeared on the FlashPoint Mediation website.
By: Shirish Gupta
Law firms, whether a solo practice or an AmLaw 10 firm, are all subject to the Americans with Disabilities Act of 1990 (ADA). And as lawyers know, ignorance of the law is no defense. So, here’s a quick primer on how the ADA and its California counterpart, the Unruh Civil Rights Act (Cal. Civ. Code §51 et seq.), apply to California law firms. Congress expressly included lawyers as subject to the ADA because access to justice is an essential civil right.
According to the CDC, about 20% of the population or 50 million Americans have disabilities. In recognition of the prejudice, antiquated attitudes, or the failure to remove societal and institutional barriers to access for persons with disabilities, Congress enacted the ADA in 1990. Although the ADA is colloquially viewed as a liberal law, it was signed by President George H.W. Bush and passed the House on an unanimous vote and the Senate (76-8). The law was expanded by President George W. Bush in 2008 with unanimous consent of the Senate and support from the US Chamber of Commerce and National Association of Manufacturers, two pro-business groups.
Goal of the ADA
The purpose of the ADA is to extend the protections of the Civil Rights Act of 1964 to the disability community in the fields of employment and everyday access. Congress wanted to ensure the equal participation of individuals with disabilities in the “mainstream” of American society. Section 2(b) of the ADA. These included not only persons born with disabilities but people who acquired them later in life, especially veterans wounded in combat and suffering from PTSD.
For the purpose of this article, we will focus on ADA Title III: Public Access and Title I: Employment Accommodation. The other titles deal with governments and telecom providers, not lawyers.
ADA in the News
The disability community is quite frustrated that 23 years after the ADA’s passage, a substantial part of the public is still not complying with its requirements. That has, in part, led to a rise of disability access lawsuits in recent years, most notably “drive-by” lawsuits where a person with a disability and her lawyer will visit and sue scores of retail establishments in a neighborhood. Similarly, the DoJ and the disability rights community have been filing lawsuits against doctors and hospitals for access violations. Although they have not been targeted en masse, yet, lawyers are ripe for the suing because they often practice from locations that are not accessible, are woefully unaware of their obligations under the ADA and have funds to pay for a settlement including plaintiffs’ attorneys’ fees.
Title III of the ADA: Public Access
Recognizing that access to lawyers is essential for participation in the “mainstream” of American society, Congress expressly required lawyers to give equal access to the disability community. “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” 42 USC §12182(a) (General Rule). “The following private entities are considered public accommodations for purposes of this subchapter, if the operations of such entities affect commerce … (F) office of an accountant or lawyer….” 42 USC §12181(7) (Definition of Public Accommodation).
There are two broad categories of public access: removal of physical barriers and modifying policies/practices, such as providing a sign language interpreter or permitting the entry of a service animal. Given its breadth, the latter will be covered in a separate article.
ADA Access in a Nutshell: Physical Barriers
So, what do lawyers have to do to comply with the ADA physical barrier limitation? They have to remove architectural barriers when it is “readily achievable”, which is defined in the statute as “easily accomplishable without much difficulty or expense”. This could include widening hallways/doorways to accommodate wheelchairs, changing doorknobs, or rearranging furniture. The test is based on the size and resources of the business.
The DoJ’s ADA website: www.ada.gov is a great starting place to see what changes a business might need to make. Its Primer for Small Businesses provides real-world advice with illustrations and examples. Overall, it is a balancing test based on cost and practicability. For example, if the cost of installing a ramp at a small restaurant would be prohibitive, the restaurant could provide take-out service. Likewise, a lawyer could offer to meet a potential client with disabilities in an accessible location (i.e. coffee shop or the client’s home/workplace).
Contrary to most people’s belief, the test is not marginal cost vs. marginal benefit (the cost of the providing access vs. the revenue from this particular client). Instead, the cost is weighed against the provider’s resources and total income. Therefore, a restaurant with $1M of revenues may be required to install a $5k ramp in order to sell 99-cent tacos.
The DoJ Is Not Moving the Goalposts
The DoJ has tried to reduce the cost of compliance. For example, if the existing building/office complies with the ADA Standards for Accessible Design published in 1991, then those elements would not have to be made compliant with the 2010 update. By example, light switches would not have be moved down from 54 inches (1991 Standard) to 48 inches (2010 Standard) — switches at 48 inches are easier to reach from a wheelchair. See more examples in the DoJ’s Primer for Small Businesses.
But I’m Just the Tenant
Lawyers typically lease space from a landlord and thus do not have control over the accessibility of the building. Nevertheless, both the tenant and the landlord could be liable under Title III of the ADA because it applies to “any person who owns, leases (or leases to), or operates a place of public accommodations”. 42 USC §12182(a). By operating a law practice in a non-accessible location, the law firm opens itself to a suit. The reality, however, is that a tenant would file a cross-complaint against its landlord so that all interested parties are involved.
To be continued next week!
Shirish Gupta is a California-based mediator with Flashpoint Mediation and a volunteer mediator with the California Department of Fair Employment and Housing. He mediates ADA and Unruh disputes. This article is written in conjunction with his presentation at the 2013 California Bar Association’s Solo and Small Firm Summit. Shirish can be reached at email@example.com. Feedback is always welcome.
Copyright 2013: Flashpoint Mediation