Construction Law: The ADA

Beyond Building Design

by Danielle Maya, Cotney Construction Law

(Editor’s Note:  Danielle Maya is a partner at Cotney Construction Law and has over 20 years of experience as an attorney.  Cotney Construction Law is an advocate for the roofing industry and General Counsel of Western States Roofing Contractors Association.  Maya can be reached at (866) 303-5868.)

As an architect, you must create spaces and design structures that comply with the Americans with Disabilities Act (ADA).  However, the implications of the ADA may impact your architectural firm in ways you may not have considered.  For example, are you aware that Title III of the ADA can create liability for an architectural firm whose online website is inaccessible to those with disabilities?

         Title III of the ADA generally prohibits an owner of a place of public accommodation from discriminating on the basis of one’s disability, in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.  Such a general prohibition begs many questions, particularly what is a public accommodation?

         A thorough definition is provided in 42 U.S.C. § 12181, which specifies that a place of public accommodation is a laundromat, lawyer’s office, or other service establishment that affects commerce.  An architectural firm’s brick and mortar office falls in this definition of a public accommodation.  Accordingly, any discrimination in the services and privileges offered by the firm on the basis of a person’s disability that occur because of some facet of an architectural firm’s physical office may run afoul with Title III of the ADA.  However, some courts have held that potential liability does not end there and may extend to an architectural firm’s online presence.

         The 11th Circuit in the case of Rendon v. Valleycrest Productions, LTD, established the proposition that inaccessible non-physical services can create liability under Title III of the ADA, even if the service itself is not technically a public accommodation.  In Rendon, a person with hearing and mobility disabilities sued the producers of a game show.  To qualify for the show, potential contestants were required to listen to recorded questions over the telephone and answer them via the telephone’s keypad.  The plaintiff was unable to hear the questions or submit answers because of his disabilities.  In holding in favor of the plaintiff’s discrimination claim, the court noted that Title III of the ADA covers both tangible and intangible barriers that restrict a disabled person’s ability to enjoy goods, services, and privileges.  Thus, it was not access to the physical studio that was critical to the court’s decision, but rather impediments created by the telephone selection process that prevented access to privileges afforded by the studio that constituted discrimination.

         Other courts have considered similar issues as they relate to online websites.  For example, when considering whether a blind man’s claim that the inaccessibility of the defendant’s website constituted discrimination, the Northern District of California, in the case of National Federation of the Blind v. Target Corporation, analyzed the extent to which the website was integrated with the brick and mortar store and whether the site operated in many ways as a gateway to the stores.  Thus, for an architectural firm, considerations like whether or not the website enables direct interaction with clients or provides directions to the firm’s office are critical to ensure ADA compliance when designing the firm’s website.

         That said, some federal courts have held that the internet is a unique medium located in no particular geographical location, and therefore websites cannot be, or serve as the nexus to, public accommodations.  In the Southern District of Florida decision of Gomez v. Bang and Olufsen American, Inc., the court went so far as to say that the ADA does not require places of public accommodations to create full-service websites for disabled persons.

         Despite the holding in Gomez, architectural firms would be well advised to consider their websites accessibility to disabled persons.  Not only will such proactive efforts help ensure compliance with the ADA, they will also help the firm reach a broader audience of paying clients and avoid bad publicity.  If you are concerned about your website’s compliance with the ADA or have any other legal concerns, contact an attorney today.

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