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May 28, 2014 -
ADA accessibility lawsuits filed against businesses and facilities for alleged violations of the Americans with Disabilities Act (ADA) have been growing over the last few years. The best defense against ADA lawsuits is to remove accessibility barriers.
Barriers are aspects of the built environment that lessen access. The removal process starts by assessing what needs to be done and then putting in place plans, procedures and policies to guide implementation. Here are four proactive steps to become an unappealing target:
Know how you're doing. The first step is to understand the basics of the ADA. One of the most important things to understand is that the ADA is a civil rights law, not a building code. Local building code officials do not oversee the enforcement of the ADA. The ADA is enforced when discrimination is alleged through private suit or by certain federal agencies, such as the Department of Justice. So just because plans are approved by building inspectors or other officials does not mean the building will be ADA compliant.
Develop a written implementation plan. The data collected from the audit will then be used to create an access plan to remove barriers within your time frame. That's 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.
Execute against the plan. The Standards require businesses to remove barriers to the extent that it is readily achievable. Many may 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's not readily achievable to immediately remove a barrier, the business must remove barriers to the extent it is readily achievable.
Let the law be your guide. The 2010 ADA Standards for Accessible Design is more than 250 pages, but there are resources to help make use of this extensive document. A couple of good places to start are the United States Access Board website, www.access-board.gov, and the U.S. DOJ ADA website, www.ada.gov. The DOJ also offers a toll-free ADA information line for assistance.