Until last week, several of my blog entries before that, with the exception of the year ender blog entry, where all employment law focused. While I would say up to 40% of my blog entries, probably more likely a third, deal with employment issues, it isn’t accurate to say that my practice focuses exclusively on employment law. Here is another blog entry on an issue outside of employment law. This blog entry discusses just what is the burden of proof when it comes to allegations that barrier removal is readily achievable and the removal wasn’t done. As is usual, the blog entry is divided into categories: overviews; facts of our case; court’s reasoning for granting the default judgment; and takeaways. The reader is free to focus on any or all of the sections of the blog entry.

I Overview

Before moving on, a little overview is in order. Title III of the ADA when it comes to barrier removal works like this:

1. Any building built after 1992 must be built in accordance with the Americans With Disabilities Act Architectural Guidelines. The specific guideline depends upon the year the building was built.

2. Any renovations to existing buildings must be done in accordance with the Americans With Disabilities Act Architectural Guidelines and the path of travel to the renovations must be such so as to allow persons with disabilities to get to the renovations.

3. With respect to existing facilities, the obligation exists to make whatever changes are readily achievable.

4. Readily achievable means without much difficulty or expense. Determining that means looking at several factors including: 1) the nature and cost of the action needed; 2) the overall financial resources of the site or sites involved in the action; 3) the number of persons employed at the site; 4) the effect on expenses and resources; 5) legitimate safety requirements necessary for safe operation, including crime prevention measures; 6) if applicable: A) the geographic separateness and the administrative or fiscal relationship of the site or sites in question to any parent Corporation or entity; B) the overall financial resources of any parent Corporation or entity; C) the overall size of the parent Corporation or entity with respect to the number of employees; D) the number, type, and location of its facilities; and E) the type of operation or operations of any parent Corporation or entity, including the composition, structure, and functions of the work force of the parent Corporation or entity.

5. Examples of what may be readily achievable can be found in 28 C.F.R. § 36.304(b) and include:

(1) Installing ramps;

(2) Making curb 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 offset 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 designated accessible parking spaces;

(19) Installing an accessible paper cup dispenser at an existing inaccessible water fountain;

(20) Removing high pile, low density carpeting; or

(21) Installing vehicle hand controls.

6. 28 CFR § 36.304(c) also list the priorities that a place of public accommodation should use in deciding how to go about making changes that are readily achievable. Those priorities are as follows:

(1) First, a public accommodation should take measures to provide access to a place of public accommodation from public sidewalks, parking, or public transportation. These measures include, for example, installing an entrance ramp, widening entrances, and providing accessible parking spaces.

(2) Second, a public accommodation should take measures to provide access to those areas of a place of public accommodation where goods and services are made available to the public. These measures include, for example, adjusting the layout of display racks, rearranging tables, providing Brailled and raised character signage, widening doors, providing visual alarms, and installing ramps.

(3) Third, a public accommodation should take measures to provide access to restroom facilities. These measures include, for example, removal of obstructing furniture or vending machines, widening of doors, installation of ramps, providing accessible signage, widening of toilet stalls, and installation of grab bars.

(4) Fourth, a public accommodation should take any other measures necessary to provide access to the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation.

II
Facts of Our Case

Our Case of the week is Johnson v. San. In this case, the plaintiff initiated an action alleging violations of the ADA and various California laws. Plaintiff sought injunctive relief, attorneys fees and costs and per California law damages. Despite being properly served, defendant never responded to the complaint. Plaintiff then moved for a default judgment.

III

Court’s Reasoning for Granting the Default Judgment

1. To succeed on an ADA claim of discrimination on account of one’s disability due to an architectural barrier, a plaintiff has to show: 1) he or she has a disability within the meaning of the ADA; 2) the defendant is a private entity owning, leasing, or operating a place of public accommodation; 3) the plaintiff was denied public accommodations by the defendant because of his or her disability; 4) the existing facility at the defendant’s place of business presents an architectural barrier prohibited under the ADA; and the removal of the barrier is readily achievable.

2. Following a 10th Circuit case, Colorado Cross Disability Coalition v. Hermanson Family, Limited, the court said that the plaintiff bears the initial burden of production to present evidence that a suggested method of barrier removal is readily achievable. After that, the burden shifts to the defendant who bears the ultimate burden of persuasion regarding its affirmative defense that a suggested method of barrier removal is not readily achievable.

3. Since in the regulations, noted above, creating designated accessible parking spaces is explicitly listed as an example of steps to remove barriers, the creation of a handicap accessible parking space is per se readily achievable.

IV
Takeaways:

1. Unless there is a strategic reason, if you get served with a complaint you should respond to it.

2. The list of what is readily achievable in the regulations mentioned above may be given per se effect by the courts. That is, if the complaint concerns one of the things listed in the regulations as being readily achievable, The mere listing of that particular provision or statements of facts showing that a particular provision of that regulation is at issue will get the plaintiff to first base. It would then be up to the defendant to somehow show that its affirmative defense should prevail. Since what is listed in the regulations are given per se effect, at least by this court, the defendant is not going to be able to show that its affirmative defense should prevail unless it responds to the complaint.

One Response to Burden of Proof When Remediation at Issue

Excellent post. Many early 1990 buildings have had 25+ years to budget funds every year for compliance. Not having accessible restrooms to me is not an unreasonable expectation

Steve

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