DBTAC: Great Lakes ADA Center

Trainings & Events

ADA Audio Conference

2008 Legal Issues Webinar: Employment and the ADA

Eighth Annual Multiple Perspectives on Access, Inclusion & Disability: Looking Back & Thinking Ahead

National ADA Symposium & EXPO

2008 Accessible Technology On-line Seminar Series

Workshop on Playground Access

The Kennedy Center's Leadership Exchange in Arts and Disability conference and training (LEAD)

• Legal issues with representatives of the U.S. Department of Justice Disability Rights office, and Peter Blanck, PhD.
• Marketing and building audiences with Nadine Vogel
• Exploring exciting ways to make inclusive educational programs effective
• Hands on surveying of the physical environment for those renovating, building new facilities or putting on an addition
• Ticketing policies and how to craft good ones.

News from the Federal Agencies

Access Board

The U.S. Access Board will hold a Town Meeting in St. Louis on May 12th, 2008, from 12:30-3:00 PM. The meeting is being held in conjunction with the National ADA Symposium, which runs May 12-14. During the meeting the Board will be accepting public comments from participants on aspects of accessibility of concern to them. Read more about the meeting at http://www.access-board.gov/news/town-meeting08.htm.

Equal Employment Opportunity Commission

The Equal Employment Opportunity Commission (EEOC) has issued two documents addressing employment of veterans with service-connected disabilities. The documents provide practical information for employers and severely injured veterans on the Americans with Disabilities Act and the Uniformed Services Employment and Reemployment Rights Act. Read more about the Documents at http://www.eeoc.gov/press/2-29-08.html.

The Equal Employment Opportunity Commission (EEOC) reported that job bias charges rose 9% in 2007. Charges filed on the basis of disability rose to 17,734 from 15,575 in 2006. The increase in filings resulted in a 14% rise over the previous year and was the highest number of filings since 1998. The EEOC also announced it had recovered $345 million in monetary relief for job bias victims. Read more about the Report at http://www.eeoc.gov/press/3-5-08.html.

Department of Justice

The U.S. Department of Justice announced the resolution of a lawsuit against the University of Michigan under the Americans with Disabilities Act (ADA). The Justice Department and the Michigan Paralyzed Veterans Association brought suit to challenge the lack of accessible seating in the university's football stadium. Under the consent decree, the university will add over 200 wheelchair and companion seats to the stadium during the next two years. The majority of these seats will be along the sidelines. Currently, the stadium has 81 pairs of wheelchair and companion seats, all located in the end zones. Read more about the Consent Decree at http://www.ada.gov/umichstadium.htm.

The U.S. Department of Justice and the U.S. Department of Housing and Urban Development have released a technical assistance document on reasonable modifications for residents with disabilities. The guidance is designed to help housing providers and homeowners' associations better understand their obligations and help persons with disabilities better understand their rights regarding the "reasonable modifications" provision of the federal Fair Housing Act. Read more about the Document at http://www.usdoj.gov/opa/pr/2008/March/08_crt_171.html.

The U.S. Department of Justice (DOJ) has posted the latest edition of the Disability Rights Online News to its web site. This publication is a bi-monthly Update on the Civil Rights Division's activities in the area of disability rights. The new issue was posted on March 5th, 2008. Read the Newsletter at http://www.ada.gov/disabilitynews.htm.

Great Lakes In Focus

Barrier Removal: Steps for Improving Access and Business

The Americans with Disabilities Act (ADA) is a comprehensive Federal civil rights law that requires equal opportunity and access for individuals with disabilities to the goods and services offered by the more than 6 million businesses in the United States. Knowledge and understanding of the requirements of the ADA are essential to compliance.

While the ADA was signed into law over 16 years ago, businesses continue to struggle with understanding their obligations. Many businesses covered by Title III of the ADA do not realize that they are required to do what is readily achievable in order to remove existing architectural and communication barriers. Readily achievable barrier removal is defined as barriers which can be removed without much difficulty or expense. There is a misperception that if no alterations have been undertaken then there is no requirement to address accessibility. The ADA does not contain a grandfather clause. A lack of knowledge and understanding of the ADA's requirements does not exempt a business from compliance.

Readily achievable barrier removal may involve designing an accessible route from the parking lot to the business, mounting dispensers in accessible locations and altering a portion of a service counter to make it accessible. The obligation to provide access to a facility and remove barriers is on-going and can be intimidating to small businesses and organizations. Providing access and removing barriers is not only the law, it also makes good business sense.

Other examples of barrier removal include but are not limited to:

• Creating designated accessible parking spaces
• Installing ramps
• Making curb cuts in sidewalks and entrances
• Widening doors
• Installing offset hinges to widen doorways
• Eliminating a turnstile or providing an alternative accessible path
• Installing accessible door hardware
• Repositioning shelves
• Rearranging tables, chairs, vending machines, display racks, and other furniture
• Installing grab bars in toilet stalls
• Rearranging toilet partitions to increase maneuvering space
• Insulating lavatory pipes under sinks to prevent burns
• Installing a raised toilet seat
• Installing a full-length bathroom mirror
• Repositioning the paper towel dispenser in a bathroom
• Installing an accessible paper cup dispenser at an existing inaccessible water fountain
• Repositioning telephones
• Adding raised markings on elevator control buttons
• Removing high pile, low density carpeting or
• Installing flashing alarm lights

1. A public accommodation should take measures to provide access to a place of public accommodation from public sidewalks, parking, or public transportation. These measures include, for example, installing an entrance ramp, widening entrances, and providing accessible parking spaces.
2. A public accommodation should take measures to provide access to those areas of a place of public accommodation where goods and services are made available to the public. These measures include, for example, adjusting the layout of display racks, rearranging tables, widening doors, and installing ramps.
3. A public accommodation should take measures to provide access to restroom facilities. These measures include, for example, removal of obstructing furniture or vending machines, widening of doors, installation of ramps, providing accessible signage, widening of toilet stalls, and installation of grab bars.
4. A public accommodation should take any other measures necessary to provide access to the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation. These measures would include: Providing Brailed and raised character signage and providing visual alarms.

The requirement to do what is readily achievable in removing existing barriers is an on-going obligation for places of public accommodation. If something is not readily achievable at the moment then the place of public accommodation should examine how it will address removing that barrier in the future.

If barrier removal is not readily achievable because it would result in a fundamental alteration in the goods or services offered by a public accommodation or in an undue burden, the public accommodation shall make its goods, services, facilities, privileges, advantages, or accommodations available through alternative methods, if those methods are readily achievable. When determining if something is an undue financial burden a place of public accommodation should consider any tax deductions that are available under IRS Tax Code 190. Businesses can take a $15,000 deduction for the removal of barriers. A tax credit is available for small businesses, less then $1,000,000 in gross revenue or 30 or fewer employees, of up to $10,000 for expenses in removing barriers.

Below are examples on how a local disability organization worked with local businesses to improve access to their businesses, comply with the ADA and create an opportunity to increase business by making their facilities accessible to individuals with disabilities.

Lucia Rios is the Accessibility Specialist with the DISABILITY network/lakeshore located in Holland, MI. The Disability Network provides services, referrals and resources for citizen's with disabilities and to local businesses and employers.

Many times our organization finds places of public accommodation unaware they lack accessible features. In our efforts to promote accessibility and remove barriers we have a system set in place. This has proved to be an effective way to accomplish communication between business and property management to remove existing barriers.

Education is key when dealing with our community businesses. Not only do we educate the public, business owners, property management and staff about ADA requirements, but we give reasons why it's in their best interest to improve accessibility. We do this by showing people that making changes is not necessarily cost-prohibitive. Many times we identify free or low-cost ways to remove barriers.

We do this by providing a thorough, detailed facility evaluation of the site. Sites are identified by community members or site management inquiries about a facility evaluation. Trained staff and volunteers provide on-site analysis, detailed written report, and affordable suggestions for the needed renovations. After a time is set up to go over the facility evaluation. We use the Checklist For Readily Achievable Barrier Removal.

Through conversation, we not only identify areas of access to be focused, but also restate the importance and explanation of why accessibility is important for everyone through examples and past sites we've worked with.

Recently, we worked with a small family owned restaurant. Located in the City of Holland, the restaurant was highly desirable because of its authentic Mexican flavor, but it was affordable too. The site was in an older building, where the parking was limited. There was an accessible parking spot out front, but to enter the building there was a high step. Inside the check out counter top was over the allotted amount stated in design standards and signage lacked throughout the facility. However, they had some nice features, which included accessible men and women's bathrooms, a variety of tables, wide aisles and friendly, helpful staff. The manager allowed a site assessment to take place and afterward was open to the changes because he saw how they could benefit the business in the long run. We found out there was an entrance to the side that didn't require the use of stairs, and the check out counter top was mounted on wood. He confided that he never thought the restaurant limited customers and wanted to correct the barriers as soon as possible. Within the week the parking spot was moved closer to the accessible entrance and made into a van accessible parking spot, signage was added out front indicating an accessible entrance to the side, the wood was removed from under the counter top and lowered to the design standard amount, and signage inside the building will be worked on next.

Having a detailed evaluation has helped other businesses we've worked with. We find that if they can see by pictures and descriptions of what barriers need to be removed then they will keep on track with removing the existing barriers.

A large company in our area, which has six facilities, asked us to do a site evaluation of a main building. Their intention was that they would take our completed evaluation and use it as a model for their other facilities. Many of the barriers in the main building were consistent throughout the facilities. They have begun to fix the barriers in all facilities and once that is finished have us go back to reassess the existing facilities to find any other inaccessible features. The model has worked well for them and has kept an ongoing positive relationship with their business.

In Focus Suggested Resources

• ADA Checklist for Readily Achievable Barrier Removal
  http://www.ada.gov/checkweb.htm
• ADATA: Readily Achievable Barrier Removal and Van Accessible Parking Spaces
  http://www.ada.gov/adata1.htm
• ADA Business Brief: Restriping Parking Lots
  http://www.ada.gov/restribr.htm
• ADA Guide For Small Businesses
  http://www.ada.gov/smbustxt.htm
• Expanding Your Market: Tax Incentives for Business
  http://www.ada.gov/taxincent.htm
• ADA Standards for Accessible Design
  http://www.ada.gov/stdspdf.htm
• Department of Justice ADA Business Connection Page
  http://www.ada.gov/business.htm#Anchor-ADA-47857
• ADA Title III Technical Assistance Manual
  III-4.4200 Readily achievable barrier removal.
  http://www.ada.gov/taman3.html#III-4.2000

The Docket

Walker v. City of Vicksburg

http://www.websupp.org/data/SDMS/5:06-cv-00060-40-SDMS.pdf

An employee with diabetes, Rudolph Walker, alleged that he was discriminated against on the basis of disability by his employer. The employer, City of Vicksburg, argued that the plaintiff did not have an ADA disability and therefore was not entitled to any relief under the Americans with Disabilities Act (ADA).

The district court agreed and granted summary judgment for the City of Vicksburg. Relying upon the Supreme Court's decision in Sutton the court found that taking into account the plaintiff in his "mitigated state," he was not substantially limited in any major life activity. Specifically, the court found that the problems he had at work (blacking out and dizziness) were of short duration and no longer occurred after he took his diabetes medication.

From the ADA Expert

Question: I am manager of a retail store that has a customer parking lot immediately adjacent to the store with two accessible parking spaces. With a limited amount of customer parking spaces employees are required to park in a lot across the street from the store. An employee with a state issued parking placard has been parking in the customer lot in one of the accessible parking spaces. Do we need to allow this as a reasonable accommodation?

Answer: The Americans with Disabilities Act (ADA) prohibits covered employers from discriminating on the basis of disability in all employment practices. Employers may hire, fire or promote the most qualified individual that he/she chooses. The ADA prohibits a covered employer from making that employment decision on the basis of disability.

The first thing to consider here is whether this employee is covered by the ADA. The ADA prohibits discrimination against qualified applicants or employees with disabilities. The fact that an individual has a state issued parking placard does not mean that the individual is covered by the ADA. The definition of who qualifies for a state parking placard is likely different from the definition of disability under the ADA. A disability under the ADA is:

A physical or mental impairment that substantially limits one or more major life activities or:

A record of such an impairment or:

Being regarded as having such an impairment.

In addition, an applicant or employee must be qualified to perform the essential functions of the job with or without a reasonable accommodation. A reasonable accommodation is any change in the way things are typically done in the workplace in order to provide equal access to the application process, to allow a qualified individual to perform the job or to provide equal access to any benefit associated with the job.

Parking is a benefit that is provided to your employees and as a reasonable accommodation you may be required to assign a parking space for a qualified employee with a disability. However, that would not require assigning one of the customer parking spaces to a qualified employee with a disability. The ADA requires equal benefits not better benefits for individuals with disabilities. Since all employees are required to park in the lot across the street providing the closest parking space in that lot may be an accommodation that would be required to be provided in this situation.

Determining whether an employee is covered by the ADA is the first part of the interactive process. When an employee requests an accommodation an employer may request documentation when the disability or the need for the accommodation is not apparent. An employer only has the right to receive documentation on the specific impairment for which the employee has requested the accommodation and not to an employee's complete medical history.

The next step in the process is determining an accommodation that would provide equal access to the benefit being provided to employees. An employer is never required to provide an accommodation that would result in an undue hardship. An undue hardship is an accommodation that would be significantly difficult or expensive to provide.

If you have questions about the ADA you may contact the DBTAC: Great Lakes ADA Center by calling (800) 949-4232 (V/TTY) or by visiting the contact form on the Center's web site.

Suggested Resource

• Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act
  http://www.eeoc.gov/policy/docs/accommodation.html
• The ADA: Your Responsibilities as an Employer
  http://www.eeoc.gov/facts/ada17.html
• Small Employers And Reasonable Accommodation
  http://www.eeoc.gov/facts/accommodation.html