The Americans with Disabilities Act of 1990 (ADA) “provides a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” The ADA is divided into four titles, two of which are more relevant to apartment communities: employment discrimination and public accommodations.

A.)  Title III – Public Accommodations

Title III concerns public accommodations that are private entities affecting commerce; thus, Title III includes the business and leasing reception areas open to the public in apartment communities. To comply with ADA regulations, owners and operators must ensure their facilities are accessible to individuals with disabilities. (See Management Issues, Parking For Disabled Persons.) Title III specifically excludes the residential areas (apartment units and surrounding grounds) covered under the FHA. (42 U.S.C. § 12181(2),(7).) Title III broadly prohibits discrimination based on disability in the full and equal enjoyment of goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation. (42 U.S.C. § 12183(a).) It includes provisions relating to new construction, alterations to public accommodations and commercial facilities, and public transportation services provided by private entities.

Title III requires the removal of architectural and/or other barriers to public accommodations. Discrimination includes a failure to remove architectural and/or communication barriers that are structural in nature in existing facilities where the removal is readily achievable. An alteration is “readily achievable” if it is “easily accomplishable or able to be carried out without much difficulty or expense.” This is a significantly lower standard than the “undue burden” standard. Determining what is “readily achievable” depends on the circumstances of the public accommodation involved relative to both the parent company and the specific site. The ADA provides several factors to consider in determining what is “readily achievable.” https://www.ada.gov/reachingout/factors.html. Barriers that at one time could not be removed because removal was not readily achievable may be able to be removed at a later date. Therefore, owners and operators should periodically reassess the need and ability to remove barriers.

Some examples of steps to remove barriers that may be readily achievable are:

  • Installing ramps;
  • Making curb cuts in sidewalks and entrances;
  • Repositioning shelves; rearranging tables, chairs, vending machines, display racks, and other furniture;
  • Repositioning telephones;
  • Adding raised markings on elevator control buttons;
  • Installing flashing alarm lights; widening doors;
  • Installing offset hinges to widen doorways;
  • Eliminating a turnstile or providing an alternative accessible path;
  • Installing accessible door hardware;
  • Installing a grab bar 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;
  • Creating designated accessible parking spaces;
  • Installing an accessible paper cup dispenser at an existing inaccessible water fountain, and;
  • Removing high pile, low-density carpeting. (28 C.F.R.§ 36.304(a).)
     

Whether any of these measures are readily achievable is determined on a case-by-case basis in light of the particular circumstances presented, and the factors cited above. Because a public accommodation may not have sufficient resources to remove all existing barriers at any given time, the Justice Department suggests providing access from public sidewalks, parking, or public transportation as the first priority. These measures may include, for example, installing an entrance ramp, widening entrances, and providing accessible parking spaces. (See Management Issues, Parking for Disabled Persons.)

Any new business and/or new leasing areas or any alterations to existing public accommodations must be readily accessible to and usable by individuals with disabilities. “Readily accessible to and usable by” means that people with disabilities are able to get to, enter and use the facility. More specifically, the term includes accessible parking areas, accessible routes to and from the facility, accessible entrances, usable bathrooms, and water fountains, accessible public and common use areas, and accessible benefits or employment areas.

The ADA does not require that any “alterations” be made to existing facilities – it requires only that if alterations that may affect the usability of the facility are made, they must be made so that, to the maximum extent feasible, the altered area is readily accessible to and usable by individuals with disabilities. (28 C.F.R. § 36.402(b).) This provision is separate and distinct from the obligation of a public accommodation to remove architectural barriers in existing facilities to the extent that such barrier removal is readily achievable. (28 C.F.R. § 36.402(a)(2).)

Individuals who allege under Title III that they are being subjected to discrimination on the basis of disability or allege that they are about to be subjected to discrimination in violation of the provisions related to new construction and alteration of facilities may file a private lawsuit. Available remedies include permanent or temporary injunctions, restraining orders and/or other orders, such as an order to provide auxiliary aid or service, modify policy, or provide alternative methods. Punitive damages specifically are excluded from available remedies. The ADA authorizes a court or agency to award reasonable attorney fees, including litigation expenses and costs, to the prevailing party, other than the United States.

The Attorney General investigates alleged Title III violations and periodically reviews compliance of businesses covered by the ADA. The Attorney General has the authority to certify or challenge whether state and building codes or ordinances meet the minimum accessibility requirements of the ADA. Under limited circumstances, the Attorney General may file a civil action in federal district court against persons reasonably believed to be engaged in a pattern or practice of resistance to the full enjoyment of any of the rights granted by Title III, or to be discriminating in a way that raises an issue of general public importance. In these civil actions, the court may grant monetary damages if requested.

As of early 2023, for ADA violations occurring on or after April 28, 2014, the maximum civil penalty for the first violation is $75,000, and for any subsequent violations, $150,000. The court must consider any good-faith effort by the entity to comply with the ADA, including whether the entity could have anticipated the need for a particular auxiliary aid to accommodate the unique needs of a particular individual.