If you own or operate an entity that is profitable but not fully compliant with the Americans with Disabilities Act (ADA), you could have a problem.

If your profitable entity chose to use profits for employee bonuses or share holder buy backs of stock, instead of improving ADA compliance, you could have a problem.

If your profitable entity chose to use profits or a loan to buy another entity, and then did not improve the ADA compliance at the acquired entity, you could have a problem.

If you represent a bank and your bank loaned money to an entity and made a profit off the loan, while the entity chose not to improve ADA compliance at the entity, you could have a problem.

If you are an investor and bought stock in an entity and made a profit off your investment, while the entity chose not to improve ADA compliance at the entity, you could have a problem.

All of these scenarios are possible due to the requirement for owners and operators of entities to install and maintain ADA compliant policies, procedures, and facilities at their entities, regardless of when the entity was established or the facilities were built.

Newly designed and constructed facilities must comply with the new 2010 ADA Standards, and alterations to existing facilities must comply to the maximum extent feasible. But here comes the catch. For existing facilities that are not undergoing alterations (regardless of the age of the facility), the owners, operators and tenants still have an obligation to remove barriers to ADA compliance to the maximum extent that is readily achievable. And if your entity is profitable, readily achievable is hard to deny. There are some exceptions that can escape this requirement, such as historical buildings, but that is for only a very small percentage of the buildings out there.

The key words in the requirements above are readily achievable. The ADA Title III Technical Assistance Manual, Part III-4.4200, Readily achievable barrier removal, states, “Public accommodations are required to remove barriers only when it is "readily achievable" to do so. Readily achievable means easily accomplishable and able to be carried out without much difficulty or expense.”

How does the "readily achievable" standard relate to other standards in the ADA? The ADA establishes different standards for existing facilities and new construction. In existing facilities, where retrofitting may be expensive, the requirement to provide access is less stringent than it is in new construction and alterations, where accessibility can be incorporated in the initial stages of design and construction without a significant increase in cost.

This standard also requires a lesser degree of effort on the part of a public accommodation than the "undue burden" limitation on the auxiliary aids requirements of the ADA. In that sense, it can be characterized as a lower standard. The readily achievable standard is also less demanding than the "undue hardship" standard in title I, which limits the obligation to make reasonable accommodation in employment.

How much difficulty or expense is too much? Determining if barrier removal is readily achievable is necessarily a case-by-case judgment. Factors to consider include:

1) The nature and cost of the action;

2) The overall financial resources of the site or sites involved; the number of persons employed at the site; the effect on expenses and resources; legitimate safety requirements necessary for safe operation, including crime prevention measures; or any other impact of the action on the operation of the site;

3) The geographic separateness, and the administrative or fiscal relationship of the site or sites in question to any parent corporation or entity;

4) If applicable, the overall financial resources of any parent corporation or entity; the overall size of the parent corporation or entity with respect to the number of its employees; the number, type, and location of its facilities; and

5) If applicable, the type of operation or operations of any parent corporation or entity, including the composition, structure, and functions of the workforce of the parent corporation or entity.

If the public accommodation is a facility that is owned or operated by a parent entity that conducts operations at many different sites, the public accommodation must consider the resources of both the local facility and the parent entity to determine if removal of a particular barrier is "readily achievable." The administrative and fiscal relationship between the local facility and the parent entity must also be considered in evaluating what resources are available for any particular act of barrier removal.

SUMMARY

If the entity is profitable, and has been profitable for a while, it is hard to deny that improvements for ADA accessibility are not readily achievable. The courts tend to favor the disabled if the issue of readily achievable is not clear. If in doubt and your entity is profitable, choose accessibility and get it fixed.

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If you observe an entity or facility that is not ADA compliant and you would like to know how to proceed, please see the link at What To Do When A Building Is Not ADA Compliant or Accessible.

ADA Inspections Nationwide, LLC, offers ADA/ABA/FHA accessibility compliance inspections for buildings and facilities, as applicable to the different laws, and expert witness services with respect to ADA/ABA/FHA laws for building owners, tenants and managers. Also, ADAIN offers consulting for home modifications as a CAPS consultant for people wishing to age in place in their homes. For a complete list of services please see ADAIN Services.

Thank you.