Are You Discriminating?

Overview of the Law

Since its enactment in 1990, educational institutions have become increasingly familiar with the Americans with Disabilities Act (ADA). In fact, it is now common knowledge that Title I of the ADA prohibits educational institutions with 15 or more employees from discriminating against employees or applicants for employment on the basis of a disability or perceived disability.

However, many educational institutions are unaware that their obligations under the ADA are not limited to the employment context. Title III of the ADA requires owners and operators of certain businesses to accommodate disabled patrons, customers and the public generally to the greatest extent possible. In addition to a general prohibition against discrimination based on disability, Title III provides specific examples of discriminatory conduct and mandates ADA compliance for new construction and alterations of buildings and facilities.

Does Title III Apply to Your School?v

Places of education, including nursery, elementary, secondary, undergraduate and post-graduate schools, are specifically identified as businesses that must comply with Title III. There is, however, an exemption for religious organizations and entities controlled by religious organizations. For example, a daycare center that would otherwise be required to comply with Title III is exempt if it is operated by a religious congregation.

What Obligations Do Schools Have Regarding Physical Barriers to Access?

Title III specifically requires, among other things, the removal of architectural barriers and communication barriers that are structural in nature in existing facilities, whenever it is readily achievable to do so. An architectural barrier is a physical element of a facility that hinders access by people with disabilities. Drinking fountains, restroom mirrors and paper towel dispensers that are mounted at a height that is not reachable to individuals using wheelchairs are some examples of architectural barriers. Doorknobs and faucet controls that are not operable by individuals with dexterity impairments are other examples. Impediments caused by furniture or equipment are also considered architectural barriers.

A communication barrier that is“structural in nature” is a barrier that is an integral part of the physical structure of a facility. Examples include conventional signs that are not accessible to individuals with vision impairments and audible alarm systems that are inaccessible to individuals with hearing impairments.

Title III requires the removal of these physical barriers when it is readily achievable to do so.“Readily achievable” means easily accomplishable and able to be carried out without much difficulty or expense. Although there is no exact formula for determining whether barrier removal is readily achievable, factors such as the nature and cost of the removal, the overall financial resources of the school and the effect of the barrier removal on the expenses and resources of the school should be considered.

While the ADA does not require new construction or alterations be undertaken, if you construct or alter a facility, the construction or alterations must comply with the ADA’s requirements. The ADA Accessibility Guidelines (“ADAAG”) contain requirements for new construction and alterations of buildings and facilities.

How Could Your School Be at Risk?

Although most educational institutions cannot imagine a scenario in which they could be liable under Title III, numerous situations exist which could put a school at risk. For example, parents or other individuals with disabilities may visit the school’s administrative offices to register a child for classes, to meet for parent/teacher conferences or to pick up or drop off a student. Schools may also have parents with disabilities who want to volunteer in the classroom, lunchroom, library or other on-campus activities. Additionally, schools host sporting or other events in the school’s gymnasium or graduation or other ceremonies in the school’s auditorium. These events may be attended by family, friends and other members of the community with disabilities and must be accessible.

How to Protect Your School

1. Conduct a Survey

In order to ensure that your school is accessible to individuals with disabilities, you should have it surveyed to determine whether barriers to access exist. You could retain an ADA consultant to perform the survey or you could do it yourself. If you choose to survey the facility yourself, a useful tool is the Americans with Disabilities Act Checklist for Readily Achievable Barrier Removal, which is posted on the Department of Justice’s Website. As previously mentioned, full compliance with ADAAG is only required for new construction and in most respects, for alterations. The checklist is a guide for determining readily achievable barrier removal for existing facilities.

For purposes of the survey, barriers to access can be broken down into four general categories: 1) parking, approach and entrance; 2) services and amenities; 3) restrooms; and 4) additional elements. Although all of the items that fall within each of these four categories cannot be identified or addressed in this article, some examples are set forth below.

First, individuals with disabilities should be able to arrive at your facility, approach the building and enter as freely as individuals without disabilities. Common deficiencies in this category include the absence of parking for individuals with disabilities (parking space and access aisle), improper size or location of the disabled parking and lack of or inadequate signage for the disabled parking. Additionally, a school’s entrance may be inaccessible because there is no ramp, there is a noncompliant ramp or the hardware on the door is too high or requires grasping, pinching or twisting.

Second, the services and amenities within your facility should be accessible to individuals with disabilities. For example, there should be at least a 36-in.-wide aisle or pathway from the accessible entrance to all public spaces in your facility, such as the reception desk, waiting room, conference room or other meeting areas, library, cafeteria, auditorium and public restrooms. Additionally, the seats, tables and counters should be at appropriate heights, and spaces for wheelchair seating should be appropriately distributed. Other items that should be checked for compliance include directional and informational signage, emergency systems and elevators.

The area least often in compliance is the restroom. In this area, the focus is on a disabled individual’s ability to get to the restrooms, the doorways and passages into the restroom and the accessibility of the stalls and lavatories. Common deficiencies include soap, toilet paper and paper towel dispensers that are outside the appropriate reach ranges of individuals in wheelchairs; lack of grab bars; and urinals, toilets, sinks and mirrors mounted at inappropriate heights.

Finally, if amenities such as drinking fountains and public telephones are provided at your facility, they should be accessible to individuals with disabilities.

2. Develop a Barrier Removal Plan

After you have identified the barriers, you should consider the possible methods for removing them. There may be more than one solution available. For example, if an exterior door requires an excessive amount of force to open it, you may opt for one of the following solutions: 1) adjusting the door closers and oiling the hinges; 2) installing power-assisted or automatic door openers; or 3) installing lighter doors. In evaluating your options, you may want to consult with a contractor, an architect, an ADA specialist, or building or equipment suppliers.

Because cost is often a factor in determining barrier removal you may need to prioritize items to be addressed. You may also need to develop a long-term plan or a timetable for bringing the entire facility into compliance. If barrier removal is not readily achievable at the time, you should consider whether there are alternative methods for providing access that are currently readily achievable.

More than 1,800 lawsuits have been filed by private law firms that are, most likely, attracted by the attorneys’ fees provision in the ADA. Unfortunately, once a lawsuit is filed, attorneys’ fees begin to mount and schools are not only faced with the cost of altering their facility, but with the high price of litigation. By taking proactive measures, such as the identification and removal of barriers, you can reduce the likelihood that your school will become the target of an ADA lawsuit.

Kristen L. Sampo is a partner in the Ft. Lauderdale, FL, office of labor and employment law firm Fisher & Phillips LLP. She represents management in labor and employment law matters. She can be reached at [email protected]