In several recent posts I’ve discussed how the Americans with Disabilities Act (ADA) requires public accommodations (i.e. businesses that offer goods and services to the public) occupied prior to January 26, 1993 to only make modifications that are “readily achievable.” I’ve received a number of requests to comment on what this term means and how a business determines whether a proposed modification (or claimed ADA violation) is readily achievable. Although there are no bright lines and each situation presents its own unique factors to consider, there are a number of factors that businesses can and should consider in deciding whether they are required to commit resources to make changes or modifications to their facility.
The regulations governing the ADA define readily achievable as modifications that are “easily accomplished” and that do not require “much difficulty or expense” (28 C.F.R. § 36.304(a)). What is easy to accomplish, or what is “expensive” is not only subject to interpretation, but also can vary based on the size of a business and its available resources. In other words, what is readily achievable for Apple is not necessarily so for a “mom and pop” restaurant. In many ways, this definition is similar to Justice Potter Stewart’s famous quote about how one defines pornography — “I know it when I see it.” Unquestionably, whether something is readily achievable is very often one of the most hotly contested issues in an ADA public accommodations lawsuit.
Fortunately, there are at least some helpful rules of thumb for a business trying to answer this question. For example, any conversation that begins with the phrase “just take out this load bearing wall over here” isn’t something that would be readily achievable for almost any business. Conversely, lowering the height of a mirror in a restroom is readily achievable for nearly every public accommodation. The question is what to do about the myriad of ADA requirements that fall in between these two statutory foul lines. Although impossible to list everything and with the caveat that each situation presents its own unique factors to consider, I’ve set forth below examples of ADA requirements that are and are not generally readily achievable for most businesses.
Five ADA Modifications Which Are Generally Not Readily Achievable
- Leveling and re-grading an entire parking lot to satisfy the ADA’s slope requirements;
- Removing walls or widening doorways and hallways;
- Installing elevators;
- Putting an addition on a structure (or conversely removing significant structural features); and
- Making modifications that create safety risks.
Five ADA Modifications Which Are Generally Readily Achievable
- Creating additional disabled parking spaces, including “van accessible” parking spaces;
- Installing “curb cuts” in sidewalks to allow wheelchair access;
- Repositioning furniture or office equipment to allow a more accessible path of travel;
- Installing raised toilet seats and “grab bars” in restrooms; and
- Installing accessible door hardware that does not require turning or twisting to open doors.
These lists, of course, are not all inclusive and will vary depending on a business’s unique circumstances. Even where a specific alternation is not readily achievable, a public accommodation must still make lesser or alternate changes to the extent possible. This may mean undertaking measures such as installing a sign informing customers that they can ask for assistance in areas of a store with narrow aisles. As with most ADA issues, a business owner’s best defense is staying on top of accessibility issues and changes to their property. It is also wise to consider conducting an accessibility audit at least one a year to pinpoint problem areas. Being proactive can help avoid the expense of costly lawsuits, or at least increase a business’s chances of a favorable result.