Ballard Spahr’s Accessibility team is fully versed in all areas of the Americans with Disabilities Act (ADA) and other laws designed to protect the rights of people with disabilities. We help clients nationwide to assess their rights and responsibilities under the law, design programs to keep them in compliance, and defend them against claims of discrimination.
The ADA prohibits discrimination and guarantees that people with disabilities have an equal chance to enjoy employment opportunities, purchase goods and services, and participate in government programs. But the scope of what can be considered a disability is increasing—as are the accommodations necessary to comply with the law.
Our clients include landlords, tenants, businesses, educational institutions, health care facilities, sports and recreational venues, and transportation systems. Many of our employer clients also are Title III entities or state and local governments. We help them navigate the provisions of the statute, regulatory guidance, and case law; respond to requests for accommodation or modifications; react to inquiries by federal, state, and local administrative agencies; and defend litigation when it arises.
The ADA typically is viewed as providing access to the physical premises for people with disabilities, but the requirements under the ADA are much broader and are continuing to expand. In addition to helping clients accommodate physical accessibility issues, we advise on related matters such as adaptive communication programs for the visually and hearing impaired, including access to ATMs and fare machines, and closed-captioning systems at sports venues, health care facilities, and conference centers. We also guide clients in providing access to those with nontraditional mobility devices.
All employers with 15 or more employees are subject to Title I of the ADA. If they are places of public accommodation they also may be subject to additional physical accessibility requirements under Titles II and III. Even small employers often are subject to state and local laws modeled after the ADA.
Employers must refrain from making employment decisions on the basis of an employee’s or applicant’s disability and provide reasonable accommodation to allow employees and applicants to participate in the hiring process and do their jobs. The scope of protected disabilities has expanded to include conditions that traditionally were not regarded as disabilities, such as many shorter term conditions, episodic impairments, and disabilities that can be mitigated. The U.S. Equal Employment Opportunity Commission has been vigilant in investigating and pursuing claims of ADA discrimination, often leading to lengthy and expensive litigation.
We consult on a broad range of compliance issues, including leave policies, nontraditional accommodations such as telecommuting arrangements, and the transfer of disabled employees into vacant positions for which they are qualified.
We regularly advise commercial, governmental, educational, and nonprofit entities on online and mobile accessibility matters, from program assessment and design, policy development and implementation, to regulatory inquiries, enforcement activities, and structured settlements.
The ADA was enacted in 1990, before online and mobile commerce ecosystems were created. Since then, online and mobile technologies have become increasingly important to all aspects of public life, including access to education, employment, government services, and commercial activities. Our lawyers help clients navigate the difficult regulatory landscape created by the Department of Justice (DOJ) through its delay in issuing regulations or guidance in this area, while pursing litigation based on inaccessibility.
Retail Accessibility: Landlord-Tenant Disputes
ADA Title III claims against owners and landlords for failure to design, build, and manage physical accessibility features are a growing problem. We help shopping centers, outlet malls, and other large commercial property owners and tenants to identify the issues that often lead to “drive by” lawsuits, and we assist them in developing regular maintenance plans that mitigate risk.
Service and Assistance Animals
The DOJ has interpreted the ADA to provide broad access for service animals in all areas where members of the public are permitted. The DOJ defines service animals narrowly to include service dogs and certain miniature horses that work and perform tasks for the benefit of people with disabilities. Other laws, such as the Fair Housing Act, take a broader approach to covered animals, and include assistance animals, such as those that provide emotional support to people with disabilities. We draft service animal policies, provide training and counseling on accessibility requirements, respond to regulatory inquiries and investigations, and defend in litigation.
Organizations that administer tests for licensing, certification, and credentialing are subject to specific regulations under Title III of the ADA. We represent testing facilities grappling with complex issues involving learning or intellectual disabilities or sensory processing disorders. We work closely with testing organizations to prevent, address, and resolve any issues. We counsel on policy development, respond to requests to modification or accommodation, respond to regulatory and congressional inquiries, and represent clients in litigation.
Brian D. Pedrow