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Avoiding ADA Lawsuits




September 12, 2013 - ADA

Accessibility lawsuits against facilities for alleged violations of the Americans with Disabilities Act (ADA) have been on the rise over the last few years. The best defense against ADA lawsuits is to begin the process of removing accessibility barriers. Barriers are aspects of the built environment that lessen accessibility for a person with a disability. The removal process starts by assessing what needs to be done and then putting in place plans, procedures and policies to guide implementation. Two other steps are crucial:

Develop a written implementation plan. Managers can use data collected from an accessibility audit to create an access plan to remove barriers within a manager's time frame. That is the good news. Enforcement of the ADA standards does not insist on complete and immediate compliance. On the other hand, doing nothing or taking half-hearted, slipshod measures are an invitation to lawsuits and substantial penalties, damages, and costs. Barrier removal is a continuing obligation, and it is expected that a business will take steps to improve accessibility over time.

Execute against the plan. The standards require facilities to remove barriers to the extent that it is readily achievable. Many might think the term readily achievable means "to the extent it is convenient for me." This is simply not so. The 1991 ADA Standards for Accessible Design defines readily achievable as, "easily accomplishable and able to be carried out without much difficulty or expense." If it is not readily achievable to immediately remove a barrier, the business must remove barriers to the extent that it is readily achievable.

Managers should incorporate continuing barrier-removal obligations into both short-term and long-term business planning. Managers might consider incorporating previously identified and deferred barriers into their annual capital planning processes. A record of this process should be part of the accessibility compliance plan.

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