DOJ Position on ADA Compliance for Elements Not Listed in ADA Standards

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The US Department of Justice (DOJ) position on ADA compliance for elements not specifically listed in the ADA Standards is that even though an element or installation may not be clearly identified by the ADA Standards, the general provisions for reasonable modifications will still apply. Interestingly, the term “reasonable modifications” is not found in the 2010 ADA Standards. The DOJ cites 42 U.S.C. § 12182(b)(2)(A)(ii) as the source for this position where it is stated that “discrimination includes a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations.”

The cases shown below provide guidance on this position. Owners, tenants, and managers of facilities should be aware of the DOJ position.

Migyanko v. Aimbridge Hospitality, LLC, Case No. 2:20-cv-01095-NR

Recently the DOJ filed a Statement of Interest in a lawsuit in the Western District of Pennsylvania to clarify that where an alleged barrier—the height of a hotel bed—is not addressed by the Americans with Disabilities Act (ADA) Standards, the ADA’s general non-discrimination provisions still apply, including making reasonable modifications where necessary to provide goods and services to people with disabilities.

Kalani v. Starbucks Corporation, 117 F. Supp. 3d 1078 (E.D. Cal. 2015)

In this case, the plaintiff, who uses a wheelchair, alleged that Starbucks arranged its interior accessible tables in such a way that he had no choice but to sit facing a wall, with his back to the store’s interior. Mr. Kalani argued that Starbucks’ actions denied him full and equal enjoyment of the store’s goods and services in that, unlike people without disabilities, he could not participate in the community coffee shop “experience” that was part of the Starbucks brand. Starbucks argued that its interior seating did not violate any regulations set out in the ADA Standards, which did not address placement of interior accessible tables, and thus did not violate the ADA as a matter of law. Id. at 1080-81. The district court sided with the plaintiff, holding that he could state an ADA claim without showing that the orientation of the tables violated the ADA Standards and, instead, could rely on the ADA’s general antidiscrimination provisions.

New v. Lucky Brand Dungarees Stores, Inc.

The defendant argued that point-of-sale (“POS”) devices used by customers to swipe a debit or credit card do not need to be accessible to blind individuals because no specific ADA Standards address them.  The DOJ clarified that while the ADA Standards do not apply to POS devices, the ADA’s general prohibition against disability discrimination and the requirement to provide effective communication apply.  The relevant question is not whether the DOJ could have issued specific standards for POS devices, but rather whether the Department did, in fact, issue such standards.  The Department has not, and thus the analysis turns to the statute’s general nondiscrimination provisions. 

Access Now, Inc. v. Blue Apron, LLC Dkt. No. 46, at 15 (citing No. 17-116, 2017 U.S. Dist. LEXIS 185112, *18 (D.N.H. Nov. 8, 2017)

Blue Apron holds that websites are covered by the ADA’s general nondiscrimination requirements because no specific regulations address them. See 2017 U.S. Dist. LEXIS 185112, *18. In dicta, the court distinguished the website-based claim from one where the Department has issued specific regulations on point and a plaintiff seeks different or greater accessibility than the Department’s controlling regulations require. The court is correct that where controlling regulations apply, they establish the parameters for compliance. Blue Apron is wholly consistent with and supports the proposition that where no relevant ADA regulations exist, the ADA’s general nondiscrimination obligations apply.

SUMMARY: The ADA Standards do not and cannot address every conceivable disability impact in a physical space. Even though an element or installation in a Title II or Title III facility is not specifically included in the ADA Standards, the DOJ will still apply the ADA’s general nondiscrimination provisions, including the requirement to make reasonable modifications where necessary to provide the public accommodation’s goods, services, facilities, privileges, advantages, or accommodations to people with disabilities. As a result, it would appear that in those facilities where an element is not specifically regulated by the ADA Standards, the final decision regarding the accessibility of the installation rests with the DOJ. Bottom line: Make sure your facilities are in compliance with the 2010 ADA Standards unless doing so would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations afforded by the entity.

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If you observe a 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 facility 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.

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