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Americans with Disabilities Act
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QUICKLINKS
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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
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.Accommodations or Commercial Facilities 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. |
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