Tag: ada regulations

ADA’s Assault on the Web: Your Turn, Congress

The Economist reports on a phenomenon I’ve been covering all year, how lawyers are beginning to churn out assembly-line complaints against businesses over their websites’ lack of Americans with Disabilities Act, or ADA, accessibility:

[Texas attorney Omar Weaver] Rosales says extending ADA rules to websites will allow him to begin suing companies that use color combinations problematic for the color-blind and layouts that are confusing for people with a limited field of vision.

While as I noted in January the Obama administration has declined to issue long-anticipated regulations prescribing web accessibility, its Department of Justice has taken the less visible route of supporting private lawsuits intended to accomplish many of the same goals, including (to quote The Economist again):

A Reprieve For Online Freedom? DoJ Gets Cold Feet On ADA-For-The-Web

Did our message finally get through? (See “How ADA-for-the-Web Regulations Menace Online Freedom,” 2013). Or that of other commentators like Eric Goldman, who warned (of a related court case) that “all hell will break loose” if the law defines websites as public accommodations and makes them adopt “accessibility”? At any rate, the U.S. Department of Justice, after years of declaring that it was getting ready any day now to label your website and most others you encounter every day as out of compliance with the ADA, has suddenly turned around and done this:

In an astonishing move, the Department of Justice (DOJ) announced that it will not issue any regulations for public accommodations websites until fiscal year 2018 — eight years after it started the rulemaking process with an Advanced Notice of Proposed Rulemaking (ANPRM).

Yes, eight years is a very long time for a rulemaking, especially one pursuing issues that have been in play for many years (that link discusses testimony I gave in 2000). And predictably, some disabled interest-group advocates are already charging that the latest delay is “outrageous” and shows “indifference.” More likely, it shows that even an administration that has launched many audacious and super-costly initiatives in regulation has figured out that this one is so audacious and super-costly that it should be – well, not dropped, but left as a problem for a successor administration.

Rand Paul and the ADA

Along with the rest, the Kentucky Senate candidate has come under fire for expressing some guarded criticism of the Americans with Disabilities Act in broadcast interviews. In particular, opponents have blasted Paul for getting some details about the law wrong in his off-the-cuff hypothetical example:

Let’s say you have a local office and you have a two story office and one of your workers is handicapped. Should you not be allowed maybe to offer them an office on the first floor, or should you be forced to put in a hundred thousand dollar elevator?

In fact ADA regulations specify that elevators will not be mandated for private buildings of “less than three stories” unless used for shopping, health care, or some other purposes. This leads Jed Lewison of Daily Kos, with the generosity of spirit toward opponents for which that site is known, to rant: “What an idiot… He has no idea what [the federal government] does. He’s like a toddler freaking out about monsters under the bed.” Right. Doesn’t everyone who gets asked about their position on the ADA on national TV know that the elevator cutoff begins at three stories, not two?

Associated Press reporter John Cook has followed up with a “Newsroom” blog entry pursuing the gotcha theme, and quotes me in the course of doing so. Since I might not have made myself sufficiently clear on the phone with Cook, let me try to have another go at it here.

Does the ADA ever mandate that a business install elevators in its three-story building? Yes, often it does, but typically not through its employment provisions, which, as federal guidance has made clear, seldom if ever require installation of an elevator as the requested “reasonable accommodation” for an individual worker. The other main branch of the ADA relevant here is the law’s architectural rules, which do not hinge on any calculation of reasonable accommodation to individual workers/users. Under these rules, so long as the owner of an older building leaves it alone without restoration, only “readily achievable” changes will be required, which will ordinarily not include elevator installation. Cook quotes spokespeople for the EEOC and DOJ who correctly deny – note the narrow wording, which may escape many readers – that elevators are required under the “reasonable accommodation” standard. And he quotes a court decision – again note the narrow ground – that elevator installation is not required under the “readily achievable” standard.

But where the rules on major improvements like elevators get their teeth – as some of Cook’s sources must surely be aware – is not from either of those standards, but from the rules that apply to new construction and, crucially, renovations of older spaces. Renovation, when not minor, triggers a requirement to bring the space up to broad ADA standards. This can easily result in elevators and other budget-busting outlays for the immediate benefit of perhaps a single employee or perhaps of no employees at all, since the requirements apply whether or not any disabled person has ever sought access to the space.

Next time federal agency spokespeople are asked about elevator mandates, I hope they address the renovation trigger rather than other, less relevant sections of the law. They might even want to check their own website (South Dakota restaurant owner “agreed to install an elevator” following complaint to the feds) or, amusingly, the Daily Kos site itself (contributor: “I was laid off from my job last November because the company I was working for was forced to install an elevator in their new building.”)

As I told Cook, I think it’s pretty common for Senators (let alone non-incumbent candidates) to display confusion about which provision does what in a complicated law. Last year Arkansas Senator Mark Pryor, defending the Consumer Product Safety Improvement Act of 2008 – a law he was himself instrumental in passing – claimed that “the law allows the CPSC to make ‘commonsense exceptions’ to anti-lead requirements.” It doesn’t, but the remark passed almost unnoticed since no gotcha narrative was running at the time.

If candidate Paul is looking for non-hypothetical examples of curious and untoward ADA applications, he might start here and here (restaurants), here (rugged hiking lodge), here (PDF, see p. 7 – resort accessible only on skis), or, on employment topics, here, here, or here. And thanks to Ira Stoll at Future of Capitalism, who cites my writing in responding to another critic of Paul, former Bush speechwriter Michael Gerson, who disputably appears to regard the ADA as among “the largest moral achievements of recent American history.”