NOTE: The
U.S. Department of Justice has a number of documents about the Americans with Disabilities Act.
The Americans with Disabilities Act had staggered compliance dates
most of which were in 1992 but one of which occurred on July 26, 1994.
As of that date, the ADA became applicable to employers with 15 or
more employees. Thus, the employment section (Title I) will apply to
more real estate sales offices than in the past. Additionally, it is
important for a real estate broker to know the relevant number of
employees under state statute. For example, the statute in California
protecting individuals with disabilities applies to employers with
five or more employees.
As a reminder, the ADA makes it unlawful to discriminate against
people with disabilities. An individual is considered disabled if he
has one of the following, (1) a physical or mental impairment that
substantially limits one or more major life activities, (2) a record
of such impairment, and (3) is regarded as having such an impairment.
Examples include impairment in walking, seeing, caring for oneself, a
history of mental illness, heart disease, cancer, cerebral palsy,
muscular dystrophy, multiple sclerosis, diabetes, AIDS, and HIV
infection. Title I of the Act applies to employment and protects
qualified persons with a disability who can perform the essential
functions of the job with or without reasonable accommodation. Thus,
if a real estate sales office has 15 or more employees, Title I
applies.
Title III of the Act prohibits entities that own, lease, lease to or
operate a place of public accommodation from discriminating against
the disabled. Businesses covered include hotels, restaurants,
convention centers, sales establishments including real estate
offices, offices of professionals such as attorneys and CPA's, etc. If
a real estate broker or agent has a home office in which business is
conducted with customers, that portion of the home must also be in
compliance with the Act. The Act requires equal access and services to
disabled individuals in the most integrated setting possible. In
essence that means that architectural and communication barriers are
to be removed in existing facilities where such removal is readily
achievable and can be carried out without much difficulty or expense.
Examples of steps to take in order to remove barriers include
installing ramps, rearranging tables and chairs, repositioning
telephones, adding raised markers on elevator control buttons,
widening doors, installing offset hinges to widen doors, etc.
How does this impact the real estate sales office? As previously
indicated, if an agent uses his or her home or a portion thereof as an
office, the private residence or portion thereof used for business
must be accessible to people with disabilities. The Office on the ADA
has issued some technical guidance for the real estate industry as
follows. For example, a two-story building with bathrooms on both the
ground floor and the second floor will be used for a real estate
office. No elevator will be installed because it is not required in a
building with less than three stories. In other words, both the ground
floor and the second floor bathrooms must be accessible. The Office on
the ADA takes the position that even in buildings that are exempt from
the elevator requirement, all of the other requirements must be met.
Thus, the second floor bathroom must still be accessible. Their
reasons are as follows. Many individuals walk up stairs by using
crutches, but would then use wheelchairs to get around once they reach
the upper floor. Additionally, accessible design of bathroom
facilities will foster ease of use by all persons. Since the ground
floor is being designed to be accessible, there is little additional
cost involved in designing the second floor to be accessible.
Another area in which the Office on the ADA has commented relates to
model homes. If a sales office for a residential housing development
is located in a model home, the area used for the sales office is
considered a covered place of public accommodation and must be
accessible, although model homes and open houses are generally not
considered to be places of public accommodation. The Office on the ADA
has stated that developers should voluntarily provide a minimal level
of access to the homes for potential homebuyers with disabilities. For
example, a developer could provide physical access via ramp or lift to
the primary level of one or several model homes and, as an
alternative, make photographs of the other levels of the home as well
as of other models available to the customer.
Since auxiliary aids must be provided to individuals covered under the
ADA if requested, who decides what type of aids are acceptable? The
Office on the ADA has indicated that public accommodations such as
real estate sales offices should consult with individuals with
disabilities to determine the type of aid needed in order to ensure
effective access and communication. The ultimate decision rests in the
hands of the public accommodation as long as the method chosen results
in effective access and communication. Thus for example, if a person
has requested an interpreter, it is necessary to provide a qualified
interpreter. A qualified interpreter is one "who is able to interpret
effectively, accurately and impartially both receptively and
expressively using any necessary specialized vocabulary." Because a
certified interpreter may not meet this standard if that interpreter
is not familiar with a specialized vocabulary, it is important to
identify an interpreter with real estate knowledge to serve in this
capacity. This is important to remember since the Office on the ADA
has taken the position that if an individual is serious in purchasing
a car, the services of a qualified interpreter may be necessary
because of the complicated nature of the communication involved in
buying a car. Obviously, buying a home is much more complicated and
costly than buying a car and it would be necessary for a real estate
agent to obtain the services of a qualified interpreter when working
with a serious buyer who had a hearing impairment.
Since enforcement under the ADA as been stepped up, it is important to
recognize your obligations. The staggered effective dates for
enforcement purposes protected small businesses with 10 or fewer
employees and gross receipts of $500,000 or less until early 1993.
That safe harbor no longer exists, however, so compliance is of utmost
importance.
INTRODUCTION
The Americans With Disabilities Act
(ADA), signed into law on July 26, 1990, makes it unlawful to
discriminate against people with disabilities. The law has five sections
or "titles" which apply to employment, public services, public
accommodations, services operated by private entities, and
telecommunications. The Department of Justice published regulations to
implement the statute in the Federal Register, Volume 56, Number
114, on July 26, 1991. These regulations offer some guidance in
complying with the Act.
Following is an overview of Titles I and III. Title I affects real
estate offices and Association offices if they have the threshold number
of employees. Title III affects Association offices, real estate
offices, and commercial facilities. Boards of REALTORS® are
authorized to duplicate this kit or portions thereof for distribution to
members, and for inclusion in Board newsletters. Definitions and a list
of resources are included at the end of this kit.
TITLE I - EMPLOYMENT
Employers Covered and the Requirements
This section of the Act has two effective dates. It is effective as of
July 26, 1992 for employers with twenty-five (25) or more employees and
July 26, 1994 for employers with fifteen (15) or more employees.
An individual will be considered disabled if he has one of the
following: (1) a physical or mental impairment that substantially limits
one or more major life activities; (2) a record of such an impairment;
and (3) is regarded as having such an impairment. Examples include
impairment in walking, seeing, caring for oneself, a history of mental
illness, heart disease, cancer, cerebral palsy, muscular dystrophy,
multiple sclerosis, diabetes, AIDS and HIV infection, and individuals
who have successfully completed or are participating in drug treatment
programs. Current users of illegal drugs, homosexuals, bisexuals,
compulsive gamblers, kleptomaniacs, and transvestites are not considered
disabled.
Under Title I, a qualified person with a disability is someone who can
perform the essential functions of the job with or without reasonable
accommodation. This means that the individual must satisfy the
prerequisites for the job such as experience, education, licensure,
etc., and be able to perform the fundamental tasks of the job.
The Act requires that employers make reasonable accommodation to the
known physical or mental disabilities of a qualified applicant or
employee, unless it would impose an undue hardship on the employer.
Reasonable accommodation will be decided on a case by case basis but may
include job restructuring, modified work schedules, providing readers or
interpreters, raising a desk for a person with a wheelchair, or allowing
a person to bring a service animal into the workplace.
Whether or not an undue hardship would be imposed upon an employer will
also be decided on a case by case basis. Undue hardship means an act
requiring significant difficulty or expense or that is unduly costly,
extensive, substantial, disruptive or will alter the nature of the
employer's business. The case by case consideration will take into
account the size and type of business, the nature and cost of the
accommodation, and the overall financial resources of the business. If
funding is available from another source such as the individual or a
rehabilitation agency, undue hardship based upon cost will not be
defensible.
Consequences of Non-Compliance
The Equal Employment Opportunity Commission (EEOC) has jurisdiction over
this title of the Act. Charges of discrimination must be filed within
one hundred and eighty (180) days of the act of discrimination, unless
the act occurs in a state where the Department of Human Rights handles
cases for the EEOC. Then the charge must be lodged with the state agency
within one hundred and eighty (180) days and the EEOC within three
hundred (300) days. If a company is found to have discriminated under
the Act, remedies may include injunctive relief, back pay, prejudgment
interest, and the award of attorneys fees and costs to the prevailing
party. Under the Civil Rights Act of 1991, compensatory and punitive
damages are also available.
Recommendations for Employers
Compliance Checklist
1. Put job descriptions in writing and identify the essential tasks of
each job.
2. Review application forms, interviewing practices, and selection
procedures to assure that uniform questions are asked of all applicants,
and that disabled individuals are evaluated on whether or not they can
perform the fundamental tasks of the job.
3. Review office layout to determine reasonable accommodations that
could be made to existing facilities to permit accessibility and use by
the disabled. This includes identifying auxiliary services for the
visual and hearing impaired and considering job restructuring.
4. Review personnel policies to assure that none adversely impact the
disabled in terms of the workplace and benefits.
5. Post notice of the Act as required by law.
TITLE III - PUBLIC ACCOMMODATIONS, COMMERCIAL FACILITIES AND PRIVATE ENTITIES THAT OFFER CERTAIN EDUCATIONAL COURSES
Businesses Covered and the Requirements
This section of the Act covers most businesses that service the public.
It also covers commercial facilities and private entities that offer
educational courses.
It prohibits any private entity that owns, leases, leases to, or
operates a place of public accommodation from discriminating against the
disabled. Examples of businesses covered include hotels, restaurants,
libraries, places of education, convention centers, sales establishments
(including real estate offices), banks, offices of professionals
such as attorneys and CPAs, and real estate board offices. If a
real estate broker or agent has a home office in which business is
conducted with customers, that portion of the home must also be in
compliance with the Act.
The intent of Title III of the Act is to provide equal access and
services to disabled individuals in the most integrated setting
possible. It requires the removal of architectural and communication
barriers that are structural in existing facilities where such removal
is readily achievable, easily accomplishable and able to be carried out
without much difficulty or expense. There is an exemption for facilities eligible for listing in the National Register
of Historic Places under the National Historic Preservation Act or those
designated as historic under state or local law, if the removal of
barriers would destroy the historic significance of the buildings and
facilities.
Examples of steps to remove barriers include but are not limited to
the following actions:
1. Installing ramps.
2. Making curved cuts in sidewalks and entrances.
3. Repositioning shelves.
4. Rearranging tables, chairs, vending machines, display racks, and
other furniture.
5. Repositioning telephones.
6. Adding raised markings on elevator control buttons.
7. Installing flashing alarm lights.
8. Widening doors.
9. Installing off-set hinges to widen doorways.
10. Eliminating a turnstile or providing an alternative accessible path
11. Installing accessible door hardware.
12. Installing grab bars in toilet stalls.
13. Rearranging toilet partitions to increase maneuvering space.
14. Insulating lavatory pipes under sinks to prevent burns.
15. Installing a raised toilet seat.
16. Installing a full length bathroom mirror.
17. Repositioning the paper towel dispenser in a bathroom.>
18. Creating and designating accessible parking spaces.
19. Installing an accessible paper cup dispenser at an existing
inaccessible water fountain.
20. Removing high pile low density carpeting.
21. Installing vehicle hand controls.
There are two effective dates under this title of the Act and two levels
of compliance. Businesses covered must comply by January 26, 1992 by
removing architectural and communication barriers and providing
auxiliary services. The obligation to engage in readily achievable
barrier removal is a continuing one and should be assessed periodically.
January 26, 1992 is also the effective date for businesses making
alterations to existing facilities. A business that is altering parts of
the building must comply with the ADA accessibility guidelines included
in the Federal Register There is a narrow
exception if an entity can demonstrate that it is structurally
impracticable to meet the requirements. This exception will apply only
in unusual circumstances where unique characteristics of terrain make
accessibility unusually difficult. There also is an elevator exemption
for new small buildings and alterations to existing facilities with less
than three stories or less than 3,000 square feet per story. It does not
apply, however, to a facility housing a shopping center, a shopping
mall, or the professional office of a health care provider, or other
categories of facilities as determined by the Attorney General..
All altered parts of the building must be accessible to the disabled,
including individuals with wheelchairs. Additionally, the path of travel
from the altered area to bathrooms, telephones, drinking fountains,
etc., must be readily accessible unless the cost to do so is
disproportionate to the cost of the alteration. This means that it must
exceed twenty percent of the cost of the alteration. It is still
necessary that businesses do as much as possible since the twenty
percent guideline is based on the three (3) year cost of alterations.
The second date for compliance of January 26, 1993 applies to new
construction where the completed application for a building permit or
permit extension was filed after January 26, 1992 and occupancy is after
January 26, 1993. For new construction, the ADA accessibility guidelines
referenced above must be followed. Id.
A deduction is available under the Internal Revenue Code of up to
$15,000.00 per year for the expense of removing architectural barriers.
A tax credit is available for certain costs of compliance for small
businesses whose gross receipts are not greater than $1,000,000.00 or
which employ no more than thirty workers. The credit is for fifty
percent of the eligible access expenditures that exceed $250.00 but do
not exceed $10,250.00.
Real estate agents should inform sellers and buyers of the existence
of the ADA, and that it applies to public accommodations and commercial
facilities. Sellers and buyers can then discuss the ADA compliance
requirements during contract negotiations in consultation with their
respective attorneys. This is particularly important in commercial
transactions.
Consequences of Non-Compliance
The Department of Justice has jurisdiction over Title III of the Act.
Both private parties and the Attorney General may initiate actions for
alleged violations. Suits by the Attorney General can arise if there is
reasonable cause to believe that any person or group of persons is
engaged in a pattern or practice of resistance to compliance with the
Act or that any person or group of persons has been denied any of the
rights granted under the Act, and such denial raises an issue of general
public importance.
Courts may grant equitable relief which may include temporary,
preliminary, or permanent restraining orders, requiring the provision of
auxiliary aids or services and modification of policies to make
facilities readily accessible to and usable by individuals with
disabilities. In addition, courts may award other relief as considered
appropriate, including monetary damages to persons aggrieved. In order
to vindicate the public interest, the court also is allowed to assess a
civil penalty in an amount not exceeding $50,000.00 for a first
violation and not exceeding $100,000.00 for any subsequent violation.
For purposes of the removal of barriers that are readily achievable, no
civil action will be brought for a violation that occurs before July 26,
1992 against businesses with twenty-five or fewer employees and gross
receipts of $1,000,000.00 or less. No action will be brought before
January 26, 1993 against businesses with ten or fewer employees and
gross receipts of $500,000.00 or less.
Recommendations for Buildings that are Public
Accommodations or Commercial Facilities
Compliance Checklist
1. Have an audit of your office conducted to determine readily
achievable changes in order to comply with the ADA. You may want to
discuss these changes with representatives of agencies for the
disabled to assure their effectiveness. If a leased office space is
involved, determine whose responsibility it is to make various
changes, the landlord or the tenant. The provisions in the lease
governing the authority to make alterations will determine which party
bears responsibility for compliance.
2. Following is the suggested order of priority for barrier
removal to make a public accommodation accessible on and after January
26, 1992:
a. Remove barriers so that the disabled can get through the
door. This may include ramping and the widening of entrances.
b.Modify policies, practices, and procedures to permit the use
of a service animal by an individual with a disability.
c. Provide access to those areas where goods and services are
made available to the public. This may require raised letter markings
on elevator control buttons and installing flashing alarm lights.
d. Make restroom facilities accessible to the disabled.
e. Other readily achievable changes.
Meetings, Conventions and Trade
Shows
Any private entity, including trade
associations, that leases space for a meeting or convention becomes a
public accommodation and must comply with the Act as of January 26,
1992, by assuring that the space is readily accessible and auxiliary
services are available. Responsibility for compliance rests with the
organization sponsoring the meeting, convention or trade show. However,
compliance can be shifted to the meeting facility utilized by the
sponsor pursuant to the terms of a contract. Boards of REALTORS®
can comply by doing the following:
Compliance Checklist
1.Since many contracts for meetings and conventions are negotiated
and signed years in advance, review existing contracts to determine if
they have a compliance clause which allocates responsibility to one of
the parties for compliance with all relevant federal, state, and local
laws.
2.If a compliance clause does not exist in your contracts,
negotiate an amendment to existing contracts requiring the facility to
comply with the ADA in areas such as access and setup for meeting
functions and displays. In addition, include an indemnification clause
whereby the facility will hold the sponsor harmless from ADA violations
within the scope of the facility's activities. The following language is
suggested:
Hotel acknowledges that it is a "place of public accommodation" as
defined in the Americans with Disabilities Act ("the Act") and hereby
represents that its goods, services, facilities, privileges, advantages,
and accommodations are in full compliance with the Act. Hotel agrees to
indemnify and hold harmless (insert name of Board) and all of its
officers, directors, and employees from and against all claims, damages,
losses and expenses, including attorneys fees, arising out of or
resulting from any allegation or claim that the goods, services,
facilities, privileges, advantages, or accommodations provided by hotel
pursuant to this agreement violated the Act.
3.Include similar language in all new contracts.
4.If the site does not provide auxiliary aids and services, identify
organizations or individuals to provide such auxiliary aids and services
as required by the ADA.
5.For future meetings and conventions, include a question on the
registration form as follows:
Do you have any disabilities which require special accommodation? If
so, please identify your special needs:
When registrants identify their needs for special accommodation, follow
up with them to discuss the special needs and arrange for such aids or
services. (The entity pays for such aids and services, not the
individual.) If registrants are part participating in educational
courses or examinations, additional steps may be necessary (see next
section).
Educational Courses
examinations or courses offered by trade
associations which are related to licensing, certification, or
continuing education credit must be accessible to persons with
disabilities on and after January 26, 1992. This means such courses and
examinations must be offered in a place and manner accessible to the
disabled or alternative arrangements must be made to provide comparable
service to the disabled individual. The goal, however, is to provide the
exam or course in the most integrated setting possible. As well,
auxiliary aids and services, such as assistive listening devices or
qualified readers, may be required to address the special needs of the
disabled.
Compliance Checklist
1. At the time individuals register for an exam or course, ask the
following question:
Do you have any disabilities which require special accommodation,
including the provision of auxiliary aids and services? If so, please
identify your special needs.
When registrants identify their need for special accommodation,
follow up with them to determine the special needs and arrange for such
aids or services. The entity pays for such aids and services, not the
individual.
2. Arrange to accommodate the special needs in the integrated
classroom setting unless impossible. Only if it is not possible to
achieve an integrated setting should alternative arrangements such as
in-home examinations be provided. Auxiliary aids and services may
include taped examinations, Braille examinations, assistive hearing
devices, or transcribers for those with manual disabilities.
3. Structure and administer examinations so that they accurately
reflect a disabled person's aptitude or achievement level, rather than
merely measuring his or her impaired sensory, manual or speaking skills.
Conclusion
The Americans With Disabilities Act will impact all of us. Most
importantly, it will have a positive impact on those 43 million people
with disabilities by bringing them into the mainstream of America.
The Act and its implementing regulations are technical and have many
gray areas. This site has definitions to provide guidance. A list of
resources for you to contact with your questions or for technical
assistance is also included in this site.
|
