Calling all Lawyers: An ADA question or two...

Factual Questions
1

Warning: Long winded explanation of the problem, but the main question is in the next sentence so you can skip the rest if you would rather:

Does the ADA have any power to make businesses install automatic door opening buttons?

My (admittedly biased) reading of it sort of does make it look that way. But one of my managers told me know. I work for the state, but we’re in a privately owned building. There are door-opener buttons on the main entrances of the building, the entrance to our front lobby, the entrance to our second floor offices, and the second floor ladies’ room door. I’m a lady that works on the second floor and who complained loudly that our old buidling only had one door opener button and it was on a door that was out of my way to use, so obviously when they built this building they only put buttons where they thought I would go.

But I also go to the restaurant in this building and have to pass through 2 separate doors that don’t have buttons. I also occasionally find myself having to use the restroom on the first floor, which also doesn’t have a button. So I wrote to a manager asking her if she could talk to the owners about adding buttons to these locations, not just for me but for any disabled claimants we have in the building (we conduct workers comp hearings, show me a claimant that isn’t disabled in some way!), and any other visitors. I can’t be the only disabled person in this building! But here’s the response I got:

“Your [additional door opener button] thought would be a nice jesture for [the owner] to do, but they are not required by ADA. We installed the button in the 2nd floor rest room and in our reception area at our own cost. It was not an ADA requirement. But, I will mention it to them, they are very accommodating and it might strike a cord with them… Thanks for your thoughts.”

What? It looks to me like it’s required! Here’s the relevant part of the ADA:

"SEC. 303. NEW CONSTRUCTION AND ALTERATIONS IN PUBLIC ACCOMMODATIONS AND COMMERCIAL FACILITIES.
(a) Application of Term.–Except as provided in subsection (b), as applied to public accommodations and commercial facilities, discrimination for purposes of section 302(a) includes–

"(1) a failure to design and construct facilities for first occupancy later than 30 months after the date of enactment of this Act that are readily accessible to and usable by individuals with disabilities, except where an entity can demonstrate that it is structurally impracticable to meet the requirements of such subsection in accordance with standards set forth or incorporated by reference in regulations issued under this title; and

“(2) with respect to a facility or part thereof that is altered by, on behalf of, or for the use of an establishment in a manner that affects or could affect the usability of the facility or part thereof, a failure to make alterations in such a manner that, to the maximum extent feasible, the altered portions of the facility are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs. Where the entity is undertaking an alteration that affects or could affect usability of or access to an area of the facility containing a primary function, the entity shall also make the alterations in such a manner that, to the maximum extent feasible, the path of travel to the altered area and the bathrooms, telephones, and drinking fountains serving the altered area, are readily accessible to and usable by individuals with disabilities where such alterations to the path of travel or the bathrooms, telephones, and drinking fountains serving the altered area are not disproportionate to the overall alterations in terms of cost and scope (as determined under criteria established by the Attorney General).”

I have to plow through a door with my wheelchair and it {the door) sometimes snaps back and smacks me in the arm or leg. Of course, that’s when the door opens away from me. When it opens towards me, it becomes a game of alternating between holding the door open with my hand and my foot while get the chair lined up to go through and try again not to get smacked. This is harder to do when holding a beverage or lunch. I have to ask, did they really make accomodations to the “maximum feasible extent”? Would it really hurt them so much financially to make these doors more accomodating to the handicapped? Are they really not required by the ADA to do it?

Thank you very much for your time and consideration.

2

IANAL, but several of my board are intimately acquainted with the ADA.

this is a public building, correct? I would check with local agencies that advocate for folks with a disability to nudge the building owner.

It may be stickier since your employer is merely a tenent at the building - I’m more familiar with ADA compliance re: employees. But if there’s a restaurant in the building, and the building also houses companies working with folks w/disabilities, these may be seen as more of a reason to order accomodations.

One other phrase that I know of, tho’ is “reasonable accomodations” - what’s ‘reasonable’ for a small business isn’t necessarily reasonable for GM for example.

So, you might not be able to get them to install a door opener, but there may be a way of installing a buzzer which would alert an employee to come help you through the door. (I know of an agency that is housed on the 2nd floor of a building, yes, there’s an elevator, but there’s also a button to push if you need help getting in the elevator).

3

This building houses several businesses, including a restaurant, a travel agency, a Will Vision Laser Center, 2 dentists, a DEA office, a City of Salem office, a couple insurance agencies, and some other stuff, I forget what. So there are people of all ages and abilities in and out of here all day. But the only door opener buttons in the entire building are on the main front and rear entrances, the second floor ladies room, and the entrances to 2 of our offices. During the day, the handicapped parking spaces are often full. I may be the only disabled full-time employee in the building, but I certainly am not the only disabled person in the entire building ever period.

So, again, does the ADA really not require additional door buttons to make all facilities, especially the 1st floor restrooms and restaurant, easily accessible to the handicapped public?

4

Whether they require it is one thing, whether you can get it another. I mean they had ten years to do it already.

I’m curious why you took a job where there weren’t enough door openers?

Also, have you considered a cheaper solution like a call button where you push a button & someone would come open the door for you?

You can also search the web for similar situations, there should be some info. I found a lot of info on my situation & found out that I was asking for something that I wasn’t entitled to.

5

This building is only a year old.

When I took this job 6 years ago, I wasn’t in a wheelchair, I barely had a limp. Things change.

This is just one of those things that most people don’t think about until they need them themselves.

But the more I think about it, the angrier I get. The guy who built this building and the building my agency was in before spares no expense when it comes to marble flooring and fountains and frivolous crap like that. Between the time he built the previous building and this building, he build 4 floating office buildings on the lake. This is the run-down, crime-ridden industrial part of town, but this guy seems to be trying to gussy it up by developing the property around the lake (and, evidentally, the lake itself), but he can’t be bothered to put in a few door-opening buttons for his disabled tenents and/or his tenents’ customers/clients. Do the buttons cost more than a fountain? What, will they ugly up his precious building?

But that’s beside the point, I guess. The specific ADA language that I’m asking about says that alterations must be made to public accommodations and commercial facilities “except where an entity can demonstrate that it is structurally impracticable to meet the requirements…” Well, if they’ve put this many buttons up so far without any problems, then it doesn’t appear to be “structurally impracticable.”

Further, it says that discrimination includes “a failure to make alterations in such a manner that, to the maximum extent feasible, the altered portions of the facility are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs.” Does it sound like the area has been altered to the “maximum extent feasible”? If door-opener buttons are feasible on other doors, what makes these doors special or “structurally impracticable”? If the answers to these 2 questions are “no” and “they’re not,” then is the building owner in compliance with the ADA? Can he be asked, no, made to install some buttons and make my and others’ lives just that much easier?

I just want some help making sure I’ve interpretted these passages correctly before I respond to the manager regarding her statement that the owner is not required to provide the buttons.

6

Well, I dunno this person personally, but a couple possible reasons spring to mind:

  1. They weren’t disabled when they took the job, but now they are and they’re just trying to hold onto their job.

  2. If disabled people only applied for jobs at places that were perfectly accessible to all then they would have a lot of trouble getting hired. Sort of like when I once worked at a construction site that only had one toilet. If I had waited until they installed the “ladies’” I would have been unemployed. So I used the “men’s”.

  3. Why shouldn’t bathrooms be accessible to the handicapped? How does it benefit anyone to render human waste depositories difficult or impossible to use? Sounds like this building is used by the public, a significant number being disabled… where do you expect the disabled to “do their business”, the freakin’ hallway or something? Add to that the fact that many (although not all) disabled have problems, um, “holding” it and the difficulties become even more of a problem.

Hmm…

  1. The desire to be independent?

  2. Fear the door-opener will not be there when needed?

  3. Embarassment at having to ask assistance for bodily functions?

7

Thank you, Broomstick :slight_smile:

8

While I understand the desire to be independant etc., the ADA requires “reasonable” accomondations. The door opener is a perfect example of this. while it may be the most convenient and appreciated way for those who have disabilities, dependant on the economics of the situation, the building owner might not necessarily be required to pay for the more expensive of the two options.

The issue you need to find out if they are required in the first place. And, again, I suggest that you contact an organization in your state that works with folks who have disabilities. If you were in Michigan, I’d recommend the State Department of Rehabilitation and/or The Disability Network. Since I don’t know what state you live in, you’ll have to do a bit of research yourself. Check your local yellow pages perhaps?

9

Okay, what I always do is read the DOJ ADA web site where they show letters that they wrote before on issues. For example, this cool letter on automatic doors, which would be nice.
(http://www.usdoj.gov/crt/foia/talindex.htm):

Your letter makes inquiry with respect to two issues under
title III of the ADA: whether automatic doors are required in
existing facilities, regardless of cost, in order to assure
accessibility for individuals with disabilities; and whether a
self evaluation is required for public accommodations. You also
request a source for answering future questions concerning the
ADA.

    Title III of the ADA requires places of public accommodation

to remove architectural barriers in existing facilities where it
is “readily achievable” to do so. The Act defines “readily
achievable” to mean “easily accomplishable and able to be carried
out without much difficulty or expense.” The factors to be
considered in determining whether the removal of a particular
barrier is readily achievable include: the nature and cost of
the action; the financial resources available both to the site
and the parent organization; the size and number of employees at
the site and overall; and the relationship of the site to the
parent organization.

Where an entity can demonstrate that removal of a particular
barrier is not readily achievable, the entity then has the
obligation to take alternative steps to make its goods and
services available to persons with disabilities, if such
alternatives are readily achievable. The regulations provide
several examples that may be relevant to your clients’
situations, such as providing curb service or home delivery. 28
C.F.R. S305(b).

Title III does not require public accommodations to conduct
a self-evaluation to determine barrier removal obligations.
However, in its Preamble to the title III regulations, this
Department recommends that public accommodations develop an
implementation plan to achieve compliance and suggests methods
for such development. See 56 Fed. Reg. 35569 (July 26, 1991).
The source of your confusion regarding the self-evaluation
requirement may be that title II, which covers State and local
governments, does have such a requirement.
Here is part of another letter:

However, where a public accommodation is not able to comply
completely with the accessibility specifications of the ADAAG,
title III provides that a public accommodation should comply to
the extent it is able to do so – again without much difficulty
or expense. With respect to your question about automatic doors
in particular, it is important to note that ADAAG does not
currently require automatic doors in any case.

Also try: http://www.usdoj.gov/crt/foia/lofindx.htm