2008-10-30, 09:44

NEW LAW MAY POSE NEW CHALLENGES

By: Multifamily Real Estate Industry Team
Responding to protests from plaintiff’s attorneys and a variety of public interest groups, and faced with a surprising degree of support from the business community, Congress hammered out the ADA Amendments Act, or “ADAAA”—an unwieldy acronym for an even more unwieldy name (“Americans with Disabilities Act Amendments Act”). The new law, effective January 1, 2008, promises to usher in a lengthy round of litigation challenges over the next several years.

The principal focus of the ADAAA is on employment. There is no change in employer coverage—employers with 15 or more employees are subject to the law. But sweeping “corrections” are found in the amendments, which are claimed “to restore the intent and protections of The American with Disabilities Act of 1990.” An extensive list of “major life activities” is included (the ADA did not give examples). “Mitigating measures” such as medication and medical devices to be used to alleviate limitations, are no longer required in determining whether a disability exists; this provision expressly overrules Supreme Court decisions which had concluded that individual responsibility should take hold before an employee was required to accommodate a disability. Conversely, eyeglasses and contact lenses are not “mitigating measures” within the ADAAA language, so one who has correctable vision impairment is not entitled to be treated as if the devices weren’t available.

Conditions which are episodic or in remission are considered disabilities irrespective of their current impact. On the other hand, Congress found that no reasonable accommodation is mandated for a “regarded as” disability, rejecting the contrary views of some courts. (It has never been clear to the writer why a nonexistent “disability” would require an accommodation just because an erroneous perception was in play.)

That cursory review of the changes to ADA Title I—the employment section of the law—is of concern to employers, but there are other aspects of the ADA which impact on the multi-family housing industry. Remember that the Fair Housing Act Amendments, dealing with the interior design of rental units, and their concentration on limitations on mobility, are not affected by the ADAAA; so let’s look at the principal ADA concern of our readers, the public accommodations language of Title III governing rental offices, clubhouses, recreation facilities, walkways and other common areas. The impact of the ADAAA changes on Title III is more subtle, but should not be ignored: The new law restructures the definitions of “disability,” “major life activities,” and “regarded as having such an impairment,” adding “rules of construction regarding the definition of disability” and making all four subsections applicable to all four ADA Titles. (The other two are “public services” (Title II) and “miscellaneous provisions” (Title IV).)

Both Title I and Title III prohibit discrimination based on disability, but “discrimination” has different meanings in the two: While employers have a wide range of actions and prohibitions they must comply with to avoid discriminating, public accommodations and commercial facilities have four basic requirements: ensuring full and equal enjoyment of goods and services they provide to all, including those with disabilities; making reasonable accommodations to the disabled when necessary unless such accommodations would “fundamentally alter” the nature of the goods or services; and providing necessary auxiliary aids and services; removal of architectural barriers “and communication barriers that are structural in nature.” The latter obligation may yield to “available alternative methods” if removal of barriers is not “readily achievable.” Note particularly that “barriers” has a broad meaning, and includes such things as issues for the visually impaired which may be accommodated by Braille, sign language or other “auxiliary aids.” (Latest case in point-an orthopedist’s office in New Hampshire which told a patient she needed to provide a family member, rather than an American Sign Language interpreter, to facilitate future appointment.)

A major distinction between Title I and Title III is the question of enforcement procedure. Employment claims under Title I start with a charge of discrimination filed with the Equal Employment Opportunity Commission, and the process from that point is identical to that of other private-sector employment discrimination cases: Investigation and attempted conciliation by EEOC, followed by a notice of right to sue (or, in rare cases, EEOC’s filing suit on behalf of the charging party), then litigation in a U.S. District Court. By contrast, the enforcement mechanism under Title III is described in Section 308 of the ADA, 42 U.S.C. § 12188: The remedies and procedures of Title I of the 1964 Civil Rights Act, and not those of the Fair Housing Act, apply; there is no necessity of filing an administrative complaint with any governmental agency, attempting prelitigation resolution, or even making the complaint known to anyone including the alleged discriminator if that would be a “futile gesture”—that is, if a person with a disability “has actual notice that a person or organization covered by this subchapter does not intent to comply with its provisions; and either the Attorney General or private plaintiffs—including organizations who would be able to file housing discrimination lawsuits—can initiate the litigation. In addition to court-ordered remedial steps such as injunctions, Title III allows monetary damages, but not punitive damages, for aggrieved persons only in actions brought by the Attorney General. The AG can also obtain civil penalties “to vindicate the public interest”: up to $50,000 for a first offense, and ‘not exceeding $100,000 for any subsequent violation. The prevailing party (other than the United States) can recover attorneys’ fees and costs from the loser, so in a government brought case, there is frequently a request by the aggrieved person or organization to intervene as an additional plaintiff.

Therefore, although the specter of large damage recovery is not as much of an issue under Title III, there can be significant costs in remediation and other compliance steps, not to mention the expense and effort which flow out of any litigation. Watch for creative approaches by advocates for the disabled to convert the employment-focused amendments to the ADA into another weapon in the housing discrimination arsenal.


(This entry posted by Charlie Edwards, a member of Womble Carlyle's Labor and Employment group.)

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