Some of the scariest risks I have helped clients address – in terms of potential claim value, meeting exacting performance requirements, and the inability to transfer risk by contract – relate to “accessibility standards,” like Americans with Disabilities Act (ADA) and Fair Housing Act (FHA).
Some of the largest dollar value claims I have defended – setting aside those arising from “mega projects” costing north of $500M to $1B-plus, which throw off enormous claims due to the sheer dollars involved – have involved defending clients from allegations of ADA and FHA violations.
The Big Misconception: Liability for Accessibility Claims is Easily Transferable
A big misconception of real estate developers and property owners is the notion their architect will “take the fall for them” if they are sued under the ADA or FHA. When the U.S. Congress passed the ADA and FHA, it did not write the laws to read “you shall comply with the accessibility requirements…unless you can offload your obligations by contract.” An indemnity clause won’t always help you.
The only foolproof way to protect yourself from claims under the ADA or FHA, and other state or local accessibility requirements, is to ensure you comply with them.
Why Are ADA and FHA Claims So Prevalent?
These accessibility standards encourage private citizens and interest groups to sue to enforce non-compliance by award of attorneys’ fees.
Part of this is necessity. The U.S. Department of Justice (DOJ) obviously cannot ensure compliance with accessibility standards in all buildings throughout the U.S. There are simply too many buildings. So it makes sense that “private attorneys general” can file civil suits to enforce accessibly standards.
Not all of these private lawsuits are brought in good faith, at least in my opinion. It seems like some people make a living from filing them. In investigating a Chicago accessibility lawsuit, I was shocked to learn that the plaintiff had filed hundreds of ADA and FHA lawsuits in a year or two.
Accessibility Consultants = Good For Everyone
Given this backdrop, I have never understood why project owners, real estate developers and architects do not insist on hiring an “accessibility consultant” for all of their projects. They use every other kind of consultant imaginable. Lighting consultants. Acoustics consultants. Traffic consultants.
You get the idea.
Obligations For Accessible Design are Exceedingly Complex
One of the biggest problems is that few property owners, real estate developers, and design professionals understand their obligations regarding accessible design and construction.
The truth is that lawyers – except those with degrees in architecture – usually lack a complete understanding of what is necessary for any project or property to comply with the accessibility standards.
This stuff is exceedingly complex and driven by factors beyond architectural design, including the specifics of any building, whether it is undergoing a design and construction project or not, and the financial resources of the property owner. What follows is not legal advice for you!
To contribute to the design and construction community’s overall knowledge about accessible design and construction, however, I offer the following – “Cliff’s Notes” summary – of some of the things I have found to be true in helping clients avoid (and when needed defend) accessibility claims.
Designing in Accordance with Accessibility Requirements
Design professionals must comply with a variety of federal, state, and local statutes, rules, and codes that require certain public and commercial buildings to be designed in a manner such that they are readily accessible to, and usable by, persons with disabilities.
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 very important and very worthy aims. We are lucky to live in a county that cares about these issues, and has made an effort through regulation to push property owners, design professionals and contractors toward compliance. But these regulations create unique liability exposures for design professionals, property owners, and contractors.
Federal legislation aimed at achieving these ends — including Title III of the Americans with Disabilities Act of 1990 (ADA) and the Fair Housing Act FHA) — create acute risks for designers. These statutes are not building codes. The ADA and Fair Housing Act are federal civil rights statutes that a variety of parties, including the 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 Fair Housing Act can be inconsistent and difficult to ascertain, even for designers who do their best to comply.
The Way ADA and FHA Claims Are Enforced Compound Designer’s Risk
Unlike the standard of care, which acknowledges that no set of plans and specifications is entirely free of errors and omissions, some argue that “accessible design requirements” must be strictly enforced. Regardless of the A/E’s good intentions or best efforts, if a design does not comply with the technical aspects of these accessibility requirements, the A/E can face liability exposure, at least according to the plaintiff’s bar who sue to enforce ADA and FHA compliance.
The difference between compliance and noncompliance is often literally a question of inches. Builders are sometimes afforded some “construction tolerance” wiggle room because construction to mathematical precision is impossible. It would be difficult to expect a contractor to construct a hotel, with a vertical tier of bathrooms, such that each bathroom is identical up the tier down to the millimeter.
Arguably, design is different. Architectural plans can be drawn with precision. Now, often non-compliance is not driven by incorrectly drawn plans. The source of ADA and FHA violations can be much more subtle. For example, the substrate of a tile wall might be thicker than they architect expected, pushing the wall out slightly, perhaps altering the distance of a toilet’s centerline from a wall. This is the kind of thing that might only be caught in the submittal process, if caught at all.
The Plaintiff’s Bar Is Usually Unconcerned With the Cost To Correct Accessibility Defects
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, sone claimants advocate, to relocate every toilet. In a tall tower in downtown Chicago, with identical vertical tiers of bathrooms, that can get expensive.
Compounding this risk, some claimants argue that common-law doctrines like “economic waste” should not applied to ADA and FHA claims as they are in other design defect or construction defect contexts. Usually, compliance with the “standard of care” is a good tonic for design malpractice claims. Sometimes, this does carry over to defense of accessibility claims. However, the plaintiff’s bar typically argues for remediation of all noncompliant conditions irrespective of the standard of care.
Prevailing Parties Can Often Recover Attorneys’ Fees in Accessibility Claims
Further, these statutes provide for recovery of a prevailing party’s attorneys’ fees and costs. This means that someone aggrieved by ADA and FHA non-compliance, someone with a measuring tape and a lawyer might, figure they might not have to pay to prosecute the lawsuit. They might figure that when the sue and win, their opponent will pay all of their attorneys’ fees.
Parenthetically, I am the kind of lawyer who argues against the award of attorneys’ fees to “prevailing parties” in lawsuits. I think they lead people to pay “selective attention” to the facts and law which favors their claim, figuring they can sue without paying, only to be disappointed when they have racked up huge attorneys’ fees and learn that their opponent has decent defenses. But I digress…
Being “Well-Intentioned” Will not, Alone, Insulate You from Accessibility Claims
The big point? It is easy for skilled and well-intentioned architects and engineers to make expensive accessible design mistakes, many property owners and real estate developers do not understand their obligations under the ADA and FHA, and claimants are financially incentivized to bring claims.
I might have guessed this inspired Miles Davis’ double album “Bitches Brew” – were it not released too early, in 1970, to have any connection to these accessibility requirements.
What Does the Americans with Disabilities Act (ADA) Require?
Subchapter III of the Americans with Disabilities Act, 42 U.S.C. §12181, et seq., prohibits discrimination on the basis of disability in places of public accommodation and services operated by private entities and requires newly constructed or altered places of public accommodation to comply with the ADA standards for accessible design. The U.S. Congress implemented this prohibition as follows:
- Congress delegated responsibility for issuing regulations to enforce Subchapter III to the Department of Justice.
- These regulations must be consistent with the minimum guidelines issued by the Architectural and Transportation Barriers Compliance Board (Access Board), an independent federal agency.
- Among other things, the Access Board is tasked to “develop advisory information for, and provide technical assistance to, individuals or entities with rights or duties under regulations prescribed pursuant titles II and III of the ADA.
- The Access Board’s guidelines are known as the Americans with Disabilities Act Accessibility Guidelines (ADAAG).
- In July 1991, the Access Board published its first ADAAG.
- Also in July 1991, the DOJ issued the first set of ADA Standards for Accessible Design (1991 Standards).
- In 2004, the Access Board issued substantial revisions to the 1991 Standards, effective September 21, 2004.
- The DOJ adopted those revisions into enforceable regulations in 2010, effective March 15, 2011.
- The 2010 Standards, which took full effect on March 15, 2012, after a transition period, are more stringent than the 1991 Standards.
Thus, many buildings designed under the 1991 Standards may not comply with the 2010 Standards. Further, many existing facilities contain barriers to accessibility that comply with neither the 1991 Standards nor the 2010 Standards.
Removal of Accessibility Barriers In Existing Facilities: the “Readily Achievable” Standard
This creates risk for property owners — and the design professionals they employ — because the ADA requires removal of accessibility barriers in existing facilities.
Specifically, discrimination under the ADA includes a private entity’s “failure to remove architectural barriers . . . in existing facilities . . . where such removal is readily achievable.” The ADA defines “readily achievable” as “easily accomplishable and able to be carried out without much difficulty or expense.” This determination is made case-by-case , and can depend as much on economic considerations as technical ones.
Whether it is “readily achievable” for an owner to remove a particular barrier depends, in part, on financial considerations, including its assets and operations. It is not just an architectural or engineering issue.
Thus, design professionals who advise owners on whether removal of existing barriers in existing facilities is readily achievable can subject themselves to unanticipated liability exposure. A design professional’s role in determining the feasibility of barrier removal should typically be limited to identifying the potential barriers and suggesting alternative designs.
Accessible Design and Construction In New Projects: the “Readily Accessible” Standard
New construction and alterations projects are subject to the even higher “readily accessible” standard. For newly constructed facilities, “discrimination . . . includes a failure to design and construct facilities for first occupancy after January 26, 1993, that are readily accessible to and usable by individuals with disabilities.”
Similarly, for new projects involving alteration of existing facilities, compliance with the ADA requires the altered facilities to be “readily accessible” to the “maximum extent feasible,” under a federal regulation which reads:
Any alteration to a place of public accommodation or a commercial facility, after January 26, 1992, shall be made so as to ensure that, to the maximum extent feasible, the altered portions of the facility are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs.
Whether a facility is “readily accessible” is determined, in part, by the ADAAG. However, the “readily accessible” standard for new construction or alteration projects is higher than the “readily achievable” standard that applies to removal of existing barriers in existing facilities.
For new buildings, “readily accessible” arguably, according to the plaintiff’s bar, requires strict compliance with the 2010 Standards.
By contrast, the ADA provides limited exceptions for alterations to existing facilities where strict compliance is not feasible. For example, an exception for “technically infeasible” alterations exists, but it applies to physical constraints like load-bearing members that are an essential part of the structure. Accessibility is required “to the maximum extent feasible” except where “it would be ‘virtually impossible’ in light of the ‘nature of an existing facility’ ” to achieve compliance with the ADA standards, according to certain federal caselaw and regulations.
ADA Caselaw Provides Little Wiggle Room for Failure to Comply.
The “ADAAG’s requirements are as precise as they are thorough, and the difference between compliance and noncompliance with the standard of full and equal enjoyment established by the ADA is often a matter of inches,” according to one federal appellate court.
According to the U.S. Supreme Court, this is because “Discrimination against the handicapped was perceived by Congress to be most often the product, not of invidious animus, but rather of thoughtlessness and indifference-of benign neglect.”
Thus, according to one federal court, “Obedience to the spirit of the ADA” does not excuse noncompliance with the ADAAG’s requirements.
Federal Courts Disagree Regarding Architects’ Liability Exposure Under the ADA and FHA
Some federal courts have held that architects cannot be liable under the ADA; other federal courts disagree.
The confusion is rooted in certain ADA language which implies, to some, that merely designing a noncompliant facility is not sufficient for a party to become liable under the ADA. That language implies that a party must “design and construct” noncompliant conditions, or otherwise own or operate the facility with the inaccessible conditions, to be liable.
For example, in one federal lawsuit, a wheelchair-bound patron sued a theater and its architect for ADA violations. The court dismissed claims against the architect because it designed but did not construct the theater. The ruling was affirmed on appeal, but on different grounds. The court held that only owners and operators of a facility can be liable under the ADA. The decision was grounded in the ADA’s text. The section that prohibits discrimination, mentions only owners and operators. The ADA section which sets forth what constitutes discrimination, contains the phrase “design and construct.” According to the court, finding an architect liable under the ADA would “create a category of liability found nowhere in the text or legislative history of the ADA.”
Similarly, another federal court held that architects are not covered by the ADA’s prohibition against discrimination by people who own, lease, or operate or who design and construct facilities. In dismissing claims against the architect, the court reasoned that the “design and construct” language is conjunctive, referring only to parties responsible for both functions, such as contractors or owners who hire others to both design and construct.
Decisions like these essentially immunize designers from ADA violations. However, other courts have reached the diametrically opposite conclusion. One federal court held, “If architects are not liable under the ADA, then it is conceivable that no entity would be liable for construction of a new commercial facility which violates the ADA.”
Some Illinois federals courts disagree that defendants must both “design and construct” to be liable. For example, the U.S. District Court for the Northern District of Illinois addressed architect liability under an accessibility statute with similar “design and construct” language, and the court sided with decisions that hold architects liable.
In one Illinois federal court case, an architect moved to dismiss by arguing that the FHA imposes liability only on those who both design and construct, thus excluding architects from liability. The court rejected the pro-architect reasoning of other federal court cases, which hold, essentially, that regardless of whether the “design and construct” language is conjunctive or disjunctive, the language should be interpreted to effectuate the broad remedial sweep of the accessibility statute. The Illinois federal court court held that “those who are wrongful participants [in such discrimination] are subject to liability” and denied the architect’s motion to dismiss.
In an earlier decision, an Illinois federal court explained that it “disagrees totally with” the pro-architect holdings of other federal courts, and noted that the statute “does proscribe nonconforming design and construction.” The court went on to colorfully characterize the assertion that architects are “insulated from liability” as “a frank absurdity.”
Another Illinois federal court reached a similar conclusion. The court held that, even though the phrase “design and construct” is conjunctive, “This court finds such a narrow, literal reading of the statute inappropriate to carry out the intent of the ADA.”
Thus, based on current but ever-changing caselaw, it is likely that aggrieved third parties with standing — the DOJ, private individuals who suffer from ADA violations, groups whose members include disabled individuals, or groups dedicated to the rights of the disabled — will argue that they can state causes of action against design professionals in Illinois for ADA violations.
Can ADA Liability Exposure Be Transferred by Contract Indemnity Clauses?
This is murky, but the answer is likely “not as much as property owners and real estate developers think.”
Whether a property owner can seek indemnity from an architect for ADA violations was resolved in Illinois in favor of the design professional. However, other courts around the U.S. have reached the opposite conclusion. It remains to be seen whether this issue will be addressed, and potentially resolved differently, by the U.S. Supreme Court.
The stakes are high. Most property owners and real estate developers probably think that ADA compliance, and liability for non-compliance, is a problem for architect and engineers. They probably think that they can “offload” this risk with a good Owner-Architect Agreement, with a good (insurable) indemnity clause, and requiring the design professional to carry professional liability insurance.
While those things are absolutely advisable, it remains unclear how much protection this affords property owners and real estate developers when faced with ADA claims.
In one recent Illinois accessibility lawsuit, the court held that the ADA, a federal law, preempts an owner’s breach-of-contract claim against an architect for failure to design in compliance with the ADA. The architect defended on the basis that the owner had a nondelegable duty to comply with federal accessibility standards, and argued that the costs incurred by the owner to correct the accessibility violations were not recoverable from the architect under a state law breach of contract action. The defendant architect argued, essentially, that nothing in the language of the ADA permits an owner to shift its liability to design professionals. The architect pointed to state and federal caselaw from other jurisdictions that has consistently held that state law causes of action seeking to recover costs incurred for noncompliance with federal accessibility standards are preempted and barred — regardless of whether the actions are styled as indemnity, contribution, or breach of contract.
In analyzing the architect’s motion to dismiss, the Illinois court relied heavily on federal cases from other jurisdictions, including one in which an owner filed indemnity and breach of contract claims against an architect for failing to design in accordance with federal accessibility laws. There, the federal appellate court outside of Illinois affirmed the trial court’s order granting summary judgment in favor of the architect, finding that the owner’s state-law claims were preempted by federal law. The Illinois court quoted from that decision, which reasoned that
“Allowing an owner to completely insulate itself from liability for an ADA or FHA violation through contract diminishes its incentive to ensure compliance with discrimination laws. If a developer . . . who concededly has a nondelegable duty to comply with the ADA and FHA, can be indemnified under state law for its ADA and FHA violations, then the developer will not be accountable for discriminatory practices. . . . Such a result is antithetical to the purposes of the ADA and FHA.”
The court observed “there are no provisions within the ADA, or its accompanying regulations, that permit indemnification or the allocation of liability between the various entities subject to the ADA.”
The court framed the question as “whether owner’s breach of contract claim is a de facto indemnity claim,” as claimed by the architect, or a “state law contract claim arising from a breach of a duty imposed by the particular terms of the contract,” as the owner asserted. The court cited decisions of other courts that recognized the distinction between these kinds of claims and held that “The distinction, and possibility, for a state law breach of contract claim hinges on the substance of the claim, not simply its label.” In finding the owner’s claim to be a de facto indemnity claim, the court held that “no matter the label of the owner’s cause of action, the breach of contract claim was a de facto indemnity claim and, therefore, was preempted” by federal accessibility law. Not good for the architect. The appellate court’s ruling was bolstered when the Illinois Supreme Court denied the owner’s petition for leave to appeal.
That decision is not an outlier; it is based on a well-developed body of federal precedent that holds that owners cannot pursue indemnification for “their own” ADA violations. Federal courts across the nation have issued rulings to the effect of the ‘ADA preempts state law indemnification and contribution claims’ and ‘state-law claims for indemnity and/or contribution “would frustrate the achievement of Congress’ purposes in adopting” ADA’ and an ‘action for indemnification under state law would frustrate basic enforcement of ADA.’
Federal courts have also handed down decisions contrary to this reasoning. Only the U.S. Supreme Court can resolve this split of authority. The future this area of law remains unclear as of publication of this post.
Liability Exposure Under the Fair Housing Act
The Fair Housing Act, as amended by the Fair Housing Act Amendments (FHAA) of 1988, aims to eliminate discrimination against, and to equalize housing opportunities for, disabled persons. The FHAA’s design and construction requirements apply to “covered multifamily dwellings” with four or more units, subject to some exceptions. The FHAA’s requirements are similar to those of the ADA, except they apply to the design and construction of common areas and dwelling units of covered residential multifamily facilities.
In 1989, the U.S. Department of Housing and Urban Development (HUD) promulgated FHAA design and construction regulations (FHAA Regulations), to effectuate the 1988 amendments to the Fair Housing Act. These regulations provide that “accessible,” when used with respect to the public and common use areas of a building containing covered multifamily dwellings, means that the public or common use areas of the building can be approached, entered, and used by individuals with physical disabilities.” The phrase “readily accessible to and usable by” is sometimes considered synonymous with “accessible.”
To define “accessible,” the FHAA Regulations refer to standards promulgated by industry groups. See generally International Code Council and American National Standard Institute, Accessible and Usable Buildings and Facilities (ICC A117.1-2009) (2010). The FHAA Regulations provide safe harbors and deem facilities that meet those standards to comply with the FHAA. HUD also publishes manuals with explanations and illustrations that are useful to designers.
The FHAA and has been interpreted, both nationally and in Illinois federal courts, to expose design professionals to liability. Some of those cases are discussed in connection with the ADA above. Their holdings can be loosely summarized as ‘architects can be liable for FHAA violations’ and ‘any participant in design or construction that contributes to FHAA violation can be liable.’
Unlike ADA jurisprudence, which not entirely consistent on the extent of design professional liability exposure, design professional liability under the FHAA is generally considered to be much more straightforward. However, one Illinois appellate court’s decision, and the federal court precedents on which it is based, do provide some basis for design professionals to argue that claims by owners who seek to be indemnified for FHAA violations are preempted by federal law.
Some cases reason that “If developers and owners knew they could shift liability for FHA and ADA violations to architects, they would have little incentive to self-test to discover potential violations during the planning and construction phases.” The holdings of some of these cases can be loosely characterized to ‘recognize preemption of indemnity claims that attempt to pass on FHAA and ADA liability’ and the ‘FHA and the ADA preempt state-law claims for both indemnity and contribution.’ Thus, A/E liability exposure to owners for FHAA violations is less clear than their liability exposure to other aggrieved parties with standing under the statute.
If you are getting the idea that this area of law is a murky mess, I would not argue with you. This is why we have a U.S. Supreme Court. However, like many other issues of law which are unresolved, and might have conflicting holdings in various state and federal courts, the U.S. Supreme Court is limited in the number of “petitions for certiorari” it can accept and the number of cases it can hear.
Other Accessibility Requirements Applicable in Illinois
Illinois design professionals – and the property owners and real estate developers who hire them – must be cognizant of numerous other federal, state, and local accessibility requirements and standards that can affect their professional services.
- for example, portions of the 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. For example, certain provisions of the Chicago Building Code closely mirror the 2010 ADA Standards for Accessible Design.
What Is the “Accessible Design and Construction” Takeaway
There are many ways to defend property owners, real estate developers, and design professionals which allege they are liable for non-compliance with accessible design and construction requirements. They should not despair if they are hit with a claim under the ADA or FHA.
Property owners and developers who believe they can 100% protect themselves from liability exposure under these accessibility standards, in every case, by “contractually offloading” their risk to design professionals take an overly-simplistic view. Sometimes that might be correct; other times, not so much. A lot depends on the facts, the project, its participants, who is bringing the claim, which court will resolve the claim, and what is the state of applicable caselaw in that particular year.
In fact, many duties imposed by the ADA are imposed, specifically, on the property owner. Property owners and real estate developers need to get good counsel – from both construction attorneys and design professionals – on the extent of their obligations under federal, state, and local accessibility requirements. I do not mean to diminish the importance of having good contracts, with clear scopes of work, good (insurable) indemnity clauses, and a solid requirement to carry professional liability insurance. However, that is the starting point for a prudent approach, not the end point.
Design professionals, for their part, would be well-advised to work for property owners and real estate developers who understand their own obligations under the ADA, FHAA, and similar standards. Architects and engineers should educate their draftspersons, and those who review contractor submittals, of the practical ways that well-intentioned designers can “lose an inch or two, here and there” and thereby expose themselves to claims. Also, architects should not be shy about pressing their owner and developer clients to bring a dedicated “accessibility consultant” on to the project team.
Despite all of the legal and technical ambiguity around the ADA, FHAA, and related state and local standards, and what they require, two things are clear:
First, whatever you may have learned about “risk transfer” in design and construction – through things like insurance and indemnity – and about the prevailing standards which determine who is liable for design and construction mistakes – like standards of care, and judicial doctrines like “economic waste” and “betterment” – will not necessarily be applied consistently across cases which involve garden-variety design and construction defects and those which involve violations of accessible design and construction standards.
Second, whether you are a well-intentioned property owner, real estate developer, architect, engineer, or contractor, the best loss prevention strategy to mitigate the risk of accessibility claims is to understand your obligations with respect to accessible design and construction, and then comply with the applicable 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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