The following is part 2 of a two-part series on the American Disabilities Act as it is enforced today. The first part, published in the June 8 Bar News, discussed how the act is enforced in New Hampshire by various entities of the U.S. Department of Justice. Click here to view Part 1.

ANY ATTORNEY MANAGING a law office should be concerned with how, and to what extent, the architectural requirements established by the Americans with Disabilities Act (ADA) apply to law offices. 42 U.S.C. § 12181, et seq.

Consider the implications for the defense firm that notices the deposition of a disabled plaintiff to appear at the defense firm, only to realize, upon the plaintiff’s arrival, that the offices are not in compliance with the ADA. Alternatively, an attorney may be thinking of renovating his or her present office or perhaps considering a move into a new location, but has not considered how the ADA may impact upon those decisions.

Although many attorneys may be aware of the ADA, they may not realize that the ADA applies directly to law offices. This article will attempt to outline a general overview of the architectural requirements of Title III of the ADA and how they apply to law offices. Moreover, it will attempt to provide some insight into the impact of the ADA for those attorneys considering renovations or moving their current office.

Under the ADA, there are both remedies available to the United States government and a private right of action. Private parties can obtain attorneys’ fees and injunctive relief, but not damages. The US government, however, can obtain damages—a civil penalty of between $50,000 for the first and $100,000 for subsequent violations—as well as declaratory and injunctive relief.

Generally, the ADA prohibits discrimination in places of public accommodation. 42 U.S.C. § 12182. Under the ADA, failure to remove architectural barriers in a place of public accommodation could lead to a finding of discrimination. As defined in the ADA, an architectural barrier consists of a physical obstruction that impedes access by the disabled, such as steps and curbs. Other, less obvious, examples of architectural barriers exist, including deep-pile carpets, unpaved exterior ground surfaces or the arrangement of office furniture in a manner that obstructs the movement of the disabled.

The ADA imposes liability upon "any person who owns, leases (or leases to) or operates a place of public accommodation" that discriminates against an individual on the basis of disability. 42 U.S.C. § 12182. Title III of the ADA applies to privately owned places of "public accommodation." Under the ADA and implementing regulations, the office of a lawyer is specifically included within the definition of a place of public accommodation. 42 U.S.C. § 12181(7)(F), 28 C.F.R. § 36.104. A law office is, therefore, required to comply with the ADA, but compliance requirements may vary.

Three differing levels of obligation under the ADA exist, depending upon whether the facility is deemed to be either pre-existing, altered or new construction. Although it is important to recognize what level of obligation currently applies to an existing office, it is more important to understand what impact certain actions, such as conducting renovations or changing office space, could have upon the required level of compliance. Before altering or moving office space, attorneys should be aware that such actions might increase their responsibilities under the ADA.

As a general proposition, a pre-existing place of public accommodation must remove barriers where such removal is readily achievable. 28 C.F.R. § 36.304(a). The ADA defines the term "readily achievable" as something that is easily accomplishable and able to be carried out without much difficulty or expense. 42 U.S.C. § 12181(9). If a place of public accommodation, such as a law office, was in existence prior to the 1992 implementation of the ADA, the more lenient "readily achievable" standard covers that office.

The "readily achievable" standard is a flexible standard, measured in part by the nature and cost of the alteration needed. 42 U.S.C. § 12181(9)(A). Included in this calculation are a number of factors directly linked to the overall financial resources of the facility and the covered entity. 42 U.S.C. § 12181(9). Other considerations, which are related to the type of operation or operations of the covered entity, go into the determination of whether removal of barriers is readily achievable. 42 U.S.C. § 12181(9)(D). In a nutshell, the size and financial resources of the law firm are considered, along with other factors, in a determination as to whether barrier removal is "readily achievable" under the ADA. If the removal is "readily achievable," the firm is required to make the alteration and remove the barriers.

Altered facilities, on the other hand, are subject to a higher standard. The altered facilities standard applies if, since 1992, the law office has been modified in a manner that affects the usability of the facility. Thus, remodeling and renovations in a law office can increase the requirements the ADA may impose. Stricter than the "readily achievable" standard, the higher standard requires the altered area to comply strictly with the ADA Accessibility Guidelines (ADAAG). The ADAAG standards contain very detailed measurements that must be met. The requirements are inflexible, especially as compared to the "readily achievable" standard.

Under the altered facilities standard, the mere fact that it would be very expensive to make the alteration is not a defense to the ADA requirements. Although the altered facility standard provides a defense if it is determined that it is technically infeasible to obtain strict compliance with the ADAAG, this is not a cost-based defense. The technical infeasibility must be one of architectural, rather than economic, infeasibility.

In addition, if there is an alteration to the primary function area, then the path of travel to the primary function area must also comply with the ADA. The primary function area is the place where a majority of the activity in a public accommodation occurs. It includes such areas as customer service and work areas. Thus, the primary function area in a law office can include conference rooms and offices. If an alteration to the path of travel is either technically infeasible or will cost more than 20 percent of the cost of the overall alteration, the ADA does provide a defense. However, 20 percent is merely a cap on expenditures, rather than a total defense to the removal of the barrier, which merely allows avoiding the payment of more than 20 percent of the entire cost of the project to upgrade the path of travel.

Finally, the strictest requirements under the ADA apply if the law office is of new construction. Under such circumstances, the office must strictly comply with the guidelines specified in ADAAG. The trigger date for new construction is 1993. There are virtually no defenses, particularly any cost-based defense, for new construction that does not comply with the ADA.

Clearly, the most lenient standard is enjoyed by pre-existing facilities constructed prior to 1992. Attorneys who are considering moving or renovating their existing offices should be aware that these activities could trigger stricter ADA standards. By altering existing office space, an attorney can leave the relative protection of the "readily achievable" standard and enter into the realm of required compliance under the stricter architectural guidelines. Equally significant results can occur by moving to new space (post-1992) that is not in compliance with the act.

Although the ADA is applicable to both lessor and lessee, an attorney can consider adding lease provisions that provide protection by allocating liability between the parties.

Despite the potential for increasing compliance responsibility under the ADA, attorneys should not be discouraged from altering their offices or moving to new facilities. Increased access can create a benefit for clients, who may be encouraged to use the services of attorneys with such accessible space. Moreover, potential tax advantages exist. A business may be eligible for a tax credit, deduction or both for ADA-related access expenditures. Attorneys should be aware of the implications and advantages of ADA accessibility as it pertains to their law office.

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