Accessible Design Requirements: Worthy Aims, Huge Risks for Design Professionals

Accessible Design Requirements in Chicago

Design professionals must comply with a variety of federal, state, and local statutes, rules, and codes, or accessible design requirements, that require certain public and commercial buildings to be designed in a manner so they are readily accessible to, and usable by, persons with certain kinds of disabilities.

Accessible Design Requirements

Such “accessibility requirements” address things like ensuring persons in wheelchairs have accessible routes into buildings; that doors are designed wide enough to allow their passage; that light switches, thermostats, and electrical outlets are within their reach; and that kitchens and bathrooms include features, and are laid out in such a way, that an individual in a wheelchair can maneuver around and make use of the space.

These requirements have important and worthy aims, but they can create unique liability exposures for design professionals including architects.

Federal Accessibility Laws are Not Like Building Codes

Federal legislation aimed at achieving these ends — including the Americans with Disabilities Act (ADA), and the Fair Housing Act (FHA) — create acute risks for designers.

These statutes are not building codes. The ADA and FHA are federal civil rights statutes that a variety of parties, including the U.S. Department of Justice (DOJ), can enforce.

These laws are written by the U.S Congress, enforced and implemented by regulations and agencies, refined through judicial decisions, and interpreted by governmental officials.

As a result, the technical requirements of the ADA and FHA can be inconsistent and difficult to determine, even for designers who do their best to comply.

Enforcement-Related Risks to Design Professionals

The way these statutes are enforced compound design professional risks and liability exposures. While I disagree with some of these statements, I have observed some lawyers arguing that:

Unlike the standard of care, which acknowledges that no set of plans and specifications is entirely free of errors and omissions, accessible design requirements are strictly enforced.

Regardless of the design professional’s good intentions or best efforts, if a design does not comply with the technical aspects of these accessibility requirements, the design professional can face liability exposure.

The difference between compliance and noncompliance is often literally a question of inches. Builders are typically afforded some “construction tolerance” wiggle room because construction to mathematical precision is impossible. Design is arguably different. At least arguably, architectural plans can be drawn with such precision.

Claimants under the ADA and FHA typically argue for remediation of all noncompliant conditions that arise from design errors, often regardless of cost. Thus, if a design error results in every toilet within a facility being 1” too far from the adjacent wall, claimants often advocate, with at least some legal basis, to relocate every toilet.

Compounding this risk, common law doctrines like “economic waste” generally are not applied to ADA and FHA claims as they are in other contexts.

Further, these statutes provide for recovery of a prevailing party’s attorneys’ fees and costs.

It is easy for skilled and well-intentioned design professionals to make expensive mistakes, and claimants are financially incentivized to bring claims under the ADA and FHA.

Other Accessibility Standards

In Illinois, design professionals must be aware of numerous other federal, state, and local accessibility requirements and standards that can affect their professional services. For example:

Rehabilitation Act of 1973, which protects the civil rights of persons with disabilities, overlaps with the ADA and applies to programs or businesses that receive federal funds.

The Illinois Human Rights Act, makes failure to “design and construct” accessible buildings a civil rights violation.

The Illinois Accessibility Code, implements the Environmental Barriers Act, which seeks to remove “environmental barriers” for “individuals with disabilities.”

Local building codes also often contain accessibility requirements. Certain provisions of the Chicago Building Code closely mirror the 2010 ADA Standards for Accessible Design, for example.

The Bottom Line?

Design professionals should not take lightly the liability exposures created by the ADA, FHA, and other requirements for accessible design. These liability exposures are a different species of risk than those design professionals face under traditional contract and common law standards.

Some of these risks can be addressed by good contracts. Other risks must be addressed by thoughtful strategies, developed by design professionals, to ensure best efforts and best processes are in place to ensure compliance with accessibility standards.

This publication is prepared for the general information of friends of Baker Law Group LLC in Illinois. It is not legal advice for you, or legal advice regarding any specific matter. Jeremy S. Baker is licensed to practice law only in Illinois. Under rules applicable to the professional conduct of attorneys in various jurisdictions, it may be considered attorney advertising material. Prior results do not guarantee a similar outcome.

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Jeremy S. Baker is an experienced Chicago-based attorney who provides transactional, dispute resolution, and general counsel services to the design and construction industry. He uses creative project structuring and intelligent contracts, plus dispute avoidance and early cost-efficient claim resolution techniques, to help his clients complete challenging projects.

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