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architectural guidelines

Architectural Accessibility Issues

June 27, 2017 by William Goren Leave a Comment

Next week is the week before my daughter’s bat mitzvah. Accordingly, I think I’m going to take that week off. This week’s blog entry comes to me courtesy of my friend Stephen Meyer, a certified Texas accessibility specialist (a certified person in Texas that assesses facilities for compliance with accessibility guidelines and regulations). The case, Kirola v. City and County of San Francisco has many interesting legal issues that arise when dealing with architectural accessibility including: the need for experts and judges to know the law; just what is standing in title III cases; whether it is necessary for the named plaintiff in a class to have visited all facilities covered by the class description; what architectural accessibility rules apply in a given situation; the importance of understanding the categories inherent in the architectural guidelines; how do you measure ramp slope; and the importance of understanding the difference between facility accessibility and program accessibility. As is usual, the blog is divided into categories and they are: facts; issues presented; court’s reasoning on the individual various issues mentioned above; and takeaways. The reader, of course, is free to focus on any or all of the categories.

I

Facts

Here, what you have is a class action alleging that San Francisco’s public right-of-ways, pools, library, parks, and recreation facilities are not readily accessible to and usable by mobility-impaired individuals. The District Court had certified a class. At the trial level, you had a dueling battle of experts with the court finding that San Francisco wins because the plaintiffs experts were not credible, among other things. Plaintiffs appealed to the Ninth Circuit.

II

Issues Presented:

  1. Just what is standing in title III cases and is it necessary for the named plaintiff to have visited every facility that is the subject of the lawsuit in order to have standing;
  2. What architectural accessibility rules apply in a given situation;
  3. What is the importance of understanding the categories inherent in the architectural guidelines;
  4. How do you measure ramp slope;
  5. What is the difference between facility accessibility and program accessibility.

III

Court’s Reasoning Concerning Just What Is Standing in Title III Cases

  1. In order to show standing, a plaintiff has to show: 1) he or she has suffered an injury in fact that is: a) concrete and particularized and b) actual or intermittent, not conjectural or hypothetical; 2) the injury is fairly traceable to the challenged action of the defendant; and 3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.
  2. Under the ADA, an injury in fact is established by evidence showing both that the plaintiff encountered an access barrier and either intent to return or is deterred from returning to the facility. Evidence at trial revealed that the plaintiff did encounter a variety of access barriers at San Francisco’s public facilities.
  3. Whether a person has standing to pursue an ADA claim is a completely different question with a different standard than whether the plaintiff will prevail on her title III ADA claim. That is, standing in no way depends upon the merits of the plaintiff’s contention that the particular conduct is illegal.
  4. Meaningful access to a program in its entirety is what you have to show to get relief on the merits, but that is not what you have to show to establish standing. To hold otherwise, means article III standing requirements are superfluous so the only thing that would matter then is whether you would succeed on the claim.
  5. In title III cases, determining injury in fact means figuring out whether the plaintiff has encountered at least one barrier interfering with his or her access to the particular facility and whether she intends to return or is deterred from returning to that facility.
  6. The barriers encountered by the plaintiff prevented her from benefiting from the same degree of access as a person without a mobility disability and deterred her from future attempts to access the facilities she visited.
  7. Her injuries are actual because they already happened, and she is likely to suffer harm in the future as a result of being currently deterred from visiting the various facilities as a result of their accessibility barriers.
  8. Causation is established because the barriers are traceable to the City since they are responsible for construction, alteration, and maintenance of the facilities that have those barriers.
  9. The redressability requirement is also satisfied since a properly framed injunction could ensure that the City alters or remove the access barriers.
  10. A plaintiff does not lose standing because her proposed injunction is thought to be too narrow by the court. The proper question is what is the federal court capable of granting.
  11. Once a named plaintiff demonstrates her individual standing to bring a claim, the standing inquiry ends, and the court proceeds to consider whether the prerequisites for class certification are met.
  12. Plaintiff demonstrated individual standing to bring her claims, and the class definition determined by the court is broad enough to encompass every facility discussed at trial, regardless of whether the name plaintiff visited that facility or not. The District Court simply got it wrong when it said it could only address facilities visited by the plaintiff since such a decision did not take into account the scope of the certified class.

IV

What Architectural Accessibility Rules Apply In A Given Situation?

  1. The Architectural and Transportation Barriers Compliance Board produces the Americans with Disabilities Act Architectural Guidelines Standards (ADAAG). So, how it works is that the Access Board establishes a baseline of nonbinding requirements and then the Department of Justice must adopt binding regulations consistent with but not necessarily identical to the Access Board’s guidelines.
  2. On July 26, 1991, the Access Board published its first version of ADAAG. That same day, DOJ adopted ADAAG in full as its own accessibility regulations.
  3. Through September 3, 2002, the Access Board published several supplements to ADAAG. However, those supplements were nonbinding because the DOJ did not re-adopt the ADAAG up to that point.
  4. In 2004, the Access Board published a wholesale revision of ADAAG. On September 15, 2010, DOJ updated that the accessibility regulation by incorporating the 2004 ADAAG standards with a few variations.
  5. DOJ’s 2010 standards set a timetable for complying with the 2004 ADAAG standards. In particular, for new constructions or alterations commencing before September 15, 2010, public entities could decide to comply either with the original 1991 ADAAG standards or with another set of federal standards, the Uniform Federal Accessibility Standards. For new construction or alterations commencing between September 15, 2010 and March 15, 2012, public entities could comply with either the 1991 ADAAG standards, the Uniform Federal Accessibility Standards, or with the newly adopted 2004 ADAAG standards. Finally, any new constructions or alteration commencing after March 15, 2012 had to comply with the 2004 ADAAG standards.
  6. The District Court found that the City had elected to follow ADAAG over the Uniform Federal Accessibility Standards with respect to meeting its accessibility obligations. The Ninth Circuit was confident that for new constructions and alterations the City elected to comply with the 1991 standard. Since the trial took place in April and May of 2011, the City could’ve only chosen to comply with the 2004 standards with respect to facilities constructed or altered during that year and a half time frame.

V

What Is the Importance of Understanding the Categories Inherent In the Architectural Guidelines?

  1. Since obedient to the spirit of the ADA does not include noncompliant with ADAAG’s requirements even where it is a matter of inches, it is important to know the different categories of requirements in the ADAAG standards.
  2. ADAAG contains two categories of requirements. §4 of the ADAAG, “Accessible Elements and Spaces: Scope and Technical Requirements,” sets out detailed design guidelines for particular features of facilities. The other category pertains to specific types of facilities rather than specific features, which the Ninth Circuit referred to as facility-specific requirements. Those requirements go across several different sections of the ADAAG and gives standards for particular types of facilities such as: restaurants and cafeterias; medical care facilities; and libraries. Each of the facility-specific sections begins with the recital that facilities covered by the facility-specific sections still have to comply with the feature-specific guidelines of §4.
  3. The District Court messed up by saying that the ADAAG did not apply to public rights-of-way, parks, and playground facilities.
  4. ADAAG standards do apply to public rights-of-way, parks, and playgrounds since §4 feature-specific requirements apply even though no facility-specific guidelines exist for public rights-of-way, parks, and playgrounds.
  5. Applying ADAAG’s feature-specific requirements to public rights-of-way, parks, and playgrounds follows the executive branch’s own interpretation of ADAAG as set forth in a technical assistance manual, and the Ninth Circuit has held that manual is entitled to deference.
  6. That technical assistance manual says that if there are not specific standards for a particular type of facility, the technical requirements of the chosen standard should be applied to the extent possible. That means applying ADAAG’s feature-specific standard to public rights-of-way, parks, and playgrounds. So, for example, while there is not a facility-specific section for parks, there is a feature-specific section for ramps that might be in the park.
  7. It is true that the technical assistance memorandum says that if no standard exist for particular features, those features need not comply with the particular design standard, but the key there is, “feature.” The sentence doesn’t speak to facilities. So, that is simply not the same thing as saying that if there are no facility-specific requirements for parks, then parks do not have to comply with the ADAAG at all.
  8. ADAAG §4 by its own terms applies to all areas of newly designed or newly constructed buildings and facilities and the altered portions of existing buildings and facilities. The key there is the phrase, “all areas.”
  9. It doesn’t work to say that the ADAAG has no application to facility types not having their own specific set of regulations because the facility-specific sections are collections of additions and exceptions. In fact, at the head of each facility-specific section language exists saying that the facility-specific requirements apply in addition to the feature-specific regulations of §4. In a real cool analogy, the Ninth Circuit says that the ADAAG is structured as a regulation applicable to all fruit but with additional rules and exceptions for apples, bananas, and oranges. So, ADAAG still applies to a pear (in this case public rights-of-way, parks, and playgrounds).
  10. Applying ADAAG’s feature-specific requirement to public rights-of-way, parks, and playgrounds makes sense because a contrary holding would mean that public entity would be free to ignore access concerns when altering buildings, new rights-of-way, parks, and playgrounds and that the standards for compliance would no longer come from the DOJ and the Access Board, but from the courts. Such a system would make no sense as courts do not have the institutional competence to put together a coherent body of regulations on this topic but federal administrative agencies do. Both the regulated entities and architects need a holistic collection of design rules and not the incremental products resulting from courts deciding cases one at a time.
  11. Avoiding minor variations is exactly what the ADAAG requires of new or altered facilities.
  12. Plaintiff’s experts were correct to avoid applying ADAAG’s proposed standard for recreation facilities because under the legal scheme, see paragraphs above, the ADAAG’s proposed standard for recreation facilities were not binding.

VI

How Do You Measure Ramp Slope?

  1. The District Court was mistaken in concluding that plaintiff’s expert should have considered the overall rise in the run, which is the average slope of the ramp, when determining whether the ramp slopes complied with the applicable standards. That conclusion doesn’t make sense because for a mobility impaired person with a disability, it is the steepest point and not the average steepness of the ramp that determines the accessibility of a particular ramp. In fact, in 2007, DOJ issued an ADA best practices toolkit recognizing that the average steepness of the ramp was not useful when assessing the accessibility of a ramp already constructed since such a figure assumed the slope over the length of the ramp is consistent, which is often not the case.
  2. So, it is the steepest point on the ramp that affects whether wheelchairs can navigate the ramp and therefore, the correct benchmark is the maximize localized variation, the steepest individual point along the slope of the ramp.

VII

Program Accessibility v. Facility Accessibility

  1. When it comes to title II of the ADA, it is program accessibility that matters. Facility accessibility is a matter of when the facility was constructed, but if you are dealing with facilities that have not been constructed or altered since the ADA went into effect, then program accessibility prevails. I add that any alterations to a facility made since the ADA went into effect have to be done consistent with the applicable standards and the path of travel to those alterations must also be done consistent with the applicable standards.
  2. Plaintiff simply did not prove that when viewed in its entirety the public right-of-way and recreation Park program were inaccessible.
  3. No class member testified there were locations in the City that a class member could not reach because of access barriers.
  4. Title II of the ADA allows for other methods to satisfy program access even where a particular method of benefiting from the program is not accessible. Here, the City of San Francisco provide both public transportation and paratransit services as part of the public right-of-way.
  5. Title II of the ADA does not require perfect accessibility.
  6. The city of San Francisco operates a website (hopefully, that website is accessible to persons with disabilities…), that gives information on the accessibility of its various parks. That information can help persons with disabilities plan on the parks that he or she wants to visit.
  7. While there may be something unique about every park, the final implementing regulations of title II of the ADA only require that the program as a whole is accessible and not that all access barriers, even those at the most iconic locations, be remedied.

VIII

Takeaways

  1. Standing to sue is not the same thing as winning on the merits and involves a lower standard than winning on the merits, which requires meaningful access. Standing requires the encountering of at least one barrier interfering with access and an intent to return or the person being deterred from returning as a result of that barrier.
  2. If a plaintiff proposes the terms of an injunction, those terms do not affect standing.
  3. If a class action is involved, standing is not lost if the plaintiff has not visited every facility covered by the class so long as the name plaintiff falls within the definition of the class.
  4. For ADAAG guidelines to be binding, DOJ adoption is required.
  5. This case is excellent for detailing what guidelines apply in a given situation. From my experience, even people who are in the business of assessing facilities for ADA architectural compliance can get thrown off balance on this score.
  6. Full and equal enjoyment of facilities by persons with disabilities, especially those with mobility impairments, can be a matter of inches.
  7. Just because no facility-specific category exists, that doesn’t mean the owner does not have to worry about the feature-specific obligation of §4 of the ADAAG.
  8. The Ninth Circuit cites to a technical assistance manual supplement. One has to wonder, especially with Justice Gorsuch now on the bench, how much deference such a memorandum will get in the future. For the deference to administrative interpretation issue, see this blog entry.
  9. The proper benchmark for measuring a slope of a ramp is the maximize localized variation, steepest point of the ramp.
  10. Program accessibility under title II of the ADA is measured against the entire program and not against a specific facility. Remember, architectural standards do apply for any new construction or alteration as do path of travel requirements. For discussion of what might be an alteration, see this blog entry.
  11. A variety of ways exist to get to program accessibility.

Filed Under: ADA, Federal Cases, Final Federal Regulations, General, Proposed Federal Regulations, Title III Tagged With: §4 ADAAG, accessible elements and spaces scope and technical requirements, ADA, ADAAG, ADAAG guidelines, alteration, architectural guidelines, benchmark, class action, Department of Justice, DOJ, Facility accessibility, facility-specific standard, feature-specific standard, intent to return, interference, Kirola v. city and County of San Francisco, maximize localized variation, meaningful access, mobility impairment, parks, path of travel, playgrounds, program accessibility, public rights-of-way, ramp slope, recreation facilities, standing, technical assistance manual, title III, title III standing

Since ADA is a nondelegable duty, does that mean indemnity is dead?

February 18, 2013 by William Goren 1 Comment

In a previous blog post, I wrote about a case involving a major resort in Las Vegas Nevada that hired somebody to help ensure that its resort modifications were in compliance with the Americans with Disabilities Act. When it turned out that those modifications were not in accordance with the ADA and the resort was sued, they sought indemnification. The Nevada Supreme Court said that the ADA was a nondelegable duty and that the resort was not going to be able to get indemnification. Does that mean indemnification is dead? The answer is not exactly. In Reid v. Summit Claiborne, LLC 2013 WL 486783 (E.D. La. February 6, 2013), Summit brought a third party complaint for indemnity against AARD NOLA and Mainstream Development, the prior owners that they purchased the building from. The underlying suit involved a lawsuit by Reid against Summit alleging that the building violated the ADA.

Here are the critical facts:

1. The building was purchased from two different entities (Mainstream Development LLC and AARD NOLA ST. Claude LLC, two separate entities). It was AARD NOLA that moved for summary judgment.

2. The purchase agreement and other relevant documents did not include an express indemnity clause.

3. There was a lease between the lessee and Mainstream LLC regarding the building being in ADA compliance and continuing to be in ADA compliance for the duration of the lease, but AARD NOLA was not on that lease, rather only Mainstream Development was.

4. The purchase agreement between Summit and AARD NOLA made numerous references to that lease , but the purchase agreement said that to seller’s knowledge the lease was a true and correct copy.

5. Purchase agreement stated that the seller was making no representation or warranty as to the information or accuracy disclosed in the survey and reports and that the seller was transferring to purchaser the property without warranty except the title.

6. The purchase agreement also contained a clause (I call it the parol evidence clause), that said that the agreement was the sole and entire agreement of the parties and that there was no other agreement other than what was set forth in the written agreement. These kind of clauses are quite common in contracts and what they do is they set up a system whereby any negotiations prior to the signing of the agreement disappear unless they are contained within that agreement.

7. There were numerous representations and warranties in the purchase agreement, but ADA compliance was not one of them.

8. Cash sale document said that there were no statements or representations or declarations of any kind being made regarding the existence or nonexistence of any quality, characteristic or condition of the property being sold.

The above facts can be found at 2013 WL 486783, **1-4.

Based upon the above facts, the court reasoned as follows. First, nothing in the documents themselves imposed a contractual duty to indemnify. Id. at *2. Second, AARD NOLA was not a party to the lease containing the language that the building had to be an ADA compliance. Id. at *3. Third, even though AARD NOLA was not on that lease, the purchasing agreement could still have incorporated that lease but did not do so. Id. Fourth, while there may have been discussions about ADA compliance done the negotiations leading up to purchase, the parol evidence clause that was part of the purchase agreement made those negotiations disappear. Id. at *4. Fifth, the seller sold the property as is. Id. Sixth, there were numerous representations and warranties in the purchase agreement, but ADA compliance was not one of them. Id. Seventh, saying that a copy of the lease is true to the best of the seller’s knowledge, is not the same as incorporating that lease and agreeing to abide by its terms. Id. at *3. Finally, the court noted that any continuing obligation to ensure compliance with the ADA was assumed by Summit during the property purchase. Id.

Preventive tips: For anyone involved in commercial real estate, this case demonstrates that a close review of documents is always in order. It also demonstrates that you need to have specific references to ADA compliance in the purchase documents. It would also be a good idea if in the purchase documents one of the representations and warranties is ADA compliance. Finally, in addition to all that, it would be wise for the purchaser to have someone knowledgeable about the ADA architectural guidelines inspect the building before purchase goes through so that the purchaser can know exactly what the ADA risks are. Once those risks are known, the purchaser could either demand that the seller bring the building into compliance as a condition of the purchase going through, or that the seller knock off money off the sale price leaving it to the purchaser to remedy the ADA violations.

Filed Under: Federal Cases, Final Federal Regulations, General, Title II, Title III Tagged With: AARD NOLA, AARD NOLA St. Claude, ADA, Americans with Disabilities Act, architectural guidelines, as is, commercial real estate, continuing obligation, continuing obligation to ensure ADA compliance, contractual duty to indemnify, Eastern District of Louisiana, express indemnity clause, incorporation by reference, indemnification, indemnity, inspect, Las Vegas Nevada, lease, lessee, mainstream development LLC, Mandalay, Nevada Supreme Court, nondelegable duty, parol evidence clause, parol evidence rule, preventive tips, Purchase agreement, purchase documents, reduction in sale price, Reid v. Summit Clairborne, representations and warranties, Review of documents, risks, Sale document, seller, seller's knowledge, specifically referencing ADA compliance, summary judgment, third-party complaint, title II, title III

ADA compliance as a nondelegable duty

November 12, 2012 by William Goren 13 Comments

People who are covered by the Americans with Disabilities Act (ADA) have an obligation to comply with its myriad requirements. The question becomes can that obligation be delegated to someone else? That is, let’s say you are a major hotel and you are building out/renovating the hotel in a big way. You hire a firm with the idea in mind that the buildout/renovations will be done in compliance with the Americans with Disabilities Act. That firm goes about its business in a way below the standard of reasonable due care. That is, the buildout is not done in such a way as to comply with the Americans with Disabilities Act architectural guidelines. This causes you to suffer a tremendous amount of damages in fending off lawsuits from private plaintiff as well as the Department of Justice. Fortunately, you had a clause in your contract with the firm that did the buildout that they would agree to indemnify you for any damages arising from any act, omission, or willful misconduct in the performance of its obligations. Relying on that clause you seek indemnification from the company that did the buildout. Will that indemnification lawsuit succeed?

This was exactly the facts in Rolf Jensen and Associates, Inc. v. Eighth Judicial District Court of the State of Nevada, 282 P.3d 743 (Nev. 2012). The facts of this case were that in 2002, Mandalay Corporation entered into a contract with Rolf Jensen and Associates Inc. to provide consulting services regarding construction of an expansion to the Mandalay Bay Resort and Casino in Las Vegas in compliance with the ADA. Id. at 745. The contract contained a provision providing that Rolf Jensen would indemnify Mandalay for damages arising from any act, omission, or willful misconduct by Rolf Jensen in its performance of its obligations. Id. Once the expansion was constructed, the Department of Justice began an investigation of numerous violations of the ADA arising from the buildout not being done in accordance with the Americans with Disabilities Act architectural guidelines. Id. That led to Mandalay entering into a comprehensive settlement agreement with the Department of Justice requiring them to bring the resort into compliance with the Americans with Disabilities Act. Id. To fix the problems, will Mandalay estimated that the retrofit of it would cost of more than $20 million. Id. Mandalay, per the clause in its contract, brought suit seeking indemnification. Id. Rolf Jensen maintained that the District Court was required to grant its motion for summary judgment because Mandalay’s claims were preempted by the ADA and sought a writ of mandamus from the Nevada Supreme Court to effectuate that. Id.

The Supreme Court of Nevada agreed with Rolf Jensen and reasoned as follows. First, the Nevada Supreme Court said that this was a situation involving conflict preemption. That is, there are two ways a federal law can impliedly preempt a state law. State laws can either be preempted by field preemption, where congressional enactments so thoroughly occupy a legislative field or touch on a field in which the federal interest is so dominant that Congress effectively leaves no room for the state to regulate conduct in that field. Id. at 746.See also the blog entry discussing the Air Carrier Access Act for a discussion of field preemption. Alternatively, you could have conflict preemption. Conflict preemption concerns whether in view of the federal law’s purpose and effects, the state law claims contained in the suit (in this suit indemnification, breach of contract, breach of express warranty, and negligent misrepresentation), pose an obstacle to the accomplishment of congress’s objectives in enacting the federal law. Id.

Second, since this is a case of conflict preemption, the Nevada Supreme Court turned to what it saw as the goals of the Americans with Disabilities Act. They said that the goal of the ADA is to not only to remedy discrimination against disabled individuals but to prevent it. Id. at 747. To ensure that, the ADA comprehensively covers discriminatory practices that persons with disabilities face in major areas of public life, including access to public accommodations. Id. The ADA also focuses on prevention as well. That is, the ADA provides that where a facility is not constructed to be readily accessible to individuals with disabilities, the owner, regardless of intent, is liable for unlawful discrimination. Id.

Third, with the exception of landlord-tenant relationships, no provisions exist within the ADA or its accompanying regulations permitting indemnification to reallocate liability between various entities subject to ADA. Id.

Fourth, the Nevada Supreme Court agreed with Rolf Jensen that such claims of indemnification and the like are preempted because they diminish the owners incentive to comply with the ADA and thereby frustrate Congress’s goal of preventing disability discrimination. Id. at 748. In reaching this conclusion they relied heavily on a Fourth Circuit case, Equal Rights Center v. Niles Bolton Associates, which held that permitting an owner through an indemnification claim to recover its losses lessons the owner’s incentive to ensure compliance with the ADA and the Fair Housing Act. Equal Rights Center v. Niles Bolton Associates, 602 F.3d 597, 602 (4th Cir. 2010). In other words, each entity subject to the Americans with Disabilities Act has a nondelegable duty to comply with that law. Id. To allow it to switch the obligation to comply on someone else means that that individual who has the obligation to comply will not be accountable for discriminatory practices. Rolf Jensen and Associates, 282 P.3d at 748. Or to put it another way, to allow such claims would allow owners to contractually maneuver themselves into a situation where they could ignore the nondelegable responsibilities under the ADA. Id.

Fifth, the remedial scheme set forth in the ADA does not provide for a right to indemnification. Id.

Sixth, Mandalay argued that permitting indemnification claims would have the overall effect of promoting ADA compliance by encouraging owners to seek advice from ADA consultants and therefore should be permitted. Id. at 749. The Nevada Supreme Court disagreed for several reasons. First, they said that owners are motivated to seek advice on ADA compliance in order to aid in their duty to construct facilities in compliance with the law. Id. To say that they only contract with the consultants in order to obtain indemnification should something go wrong, simply diminishes to the extreme the role qualified consultant play in an owner’s effort to meet ADA requirements. Id. Second, allowing such behavior, has a debilitating effect on ADA compliance. Id. Therefore, the Nevada Supreme Court believed that the surest way to maximize ADA compliance would be to hold the owner’s risk of noncompliance firmly in place, i.e. be a nondelegable duty. Id. Third, the owner of Mandalay, a highly sophisticated entity with ultimate authority over all construction decision, is in the best position to prevent violations of the ADA. Id. Lastly, Rolf Jensen still did have liability for their actions, but the liability extended to the individual with disabilities rather than to Mandalay. Id.

Seventh, Mandalay claimed that their claims were not really indemnification claims at all, but rather it was seeking separate and distinct relief for Rolf Jensen’s breach of its contractual and professional obligations. Id. at 750. The Nevada Supreme Court disagreed and said simply that such claims would be a subterfuge for indemnification and for all the reasons discussed here are preempted by the ADA. Id. Accordingly, they held that the lower court had no choice, quite literally, to grant Rolf Jensen’s motion for summary judgment and issue the writ of mandamus (a writ that compels the performance of a governmental act). Id. at 751.

Preventive tips: Basic preventive law before this decision would say that any time you hire someone to do a build out that will be in compliance with the Americans with Disabilities Act or to engage in ADA compliance efforts, that you would put in the contract an indemnification clause, much like the clause that Mandalay had in its contract. However, this decision calls into question as to whether such a clause would either be held to be preempted by the Americans with Disabilities Act or be held to be void against public policy. If you are in Illinois, you might try and rely on two cases involving attorneys suing for wrongful discharge and claim that if indemnification was not allowed then there would be no reason to hire such people to ensure ADA compliance. In those cases, the Illinois Supreme Court said that to allow an attorney to sue for wrongful discharge would jeopardize the attorney-client relationship. See Balla v. Gambro, Inc. 145 Ill. 2d 492 (1991); See also Jacobsen v. Knepper and Moga P.C. 185 Ill. 2d 372 (1998). That is, why hire such a person at all if it would just come back to bite you. That said, the states that have considered whether an attorney can sue for wrongful discharge, have uniformly disagreed with the reasoning of the Illinois Supreme Court in both of those cases. Sheppardize Balla v. Gambro and General Dynamics Corporation v. Superior Court 7 Cal. 4th 1164 (1994), to see that the California view is prevailing and that the Illinois view is restricted to Illinois. In short, if you are in Illinois, the indemnification language may be worth a shot. If you are in another state, the indemnification language may run into the trouble that it ran into in Nevada. Assuming such an indemnification clause will fail, what is the company to do? A couple of possibilities include: hiring a person to independently double check the work of the contractor; or having your in-house counsel or other in-house personnel work with the contractor and any other consultants to ensure that the work/advice is done/given in the way that is supposed to be done/given. True, such a process increases the costs to the company. However, by doing so, it helps ensure that the company’s nondelegable duty is satisfied and also increases the probability that the Americans with Disabilities Act will be fully complied with.

Filed Under: Final Federal Regulations, State Cases, Title II, Title III Tagged With: Access places of public accommodation, ADA, ADA compliance, ADA compliance attorney, ADA compliance consultant, ADA consultant, ADA defense attorney, Americans with Disabilities Act, architectural guidelines, balla v. Gambro, best position to prevent violations, buildout, conflict preemption, damages, delegate, delegated, Department of Justice, Diminish owner's incentive to comply, double check, equal rights Center v. Niles Bolton Associates, fair housing act, field preemption, General Dynamics v. Superior Court, goals of the Americans with Disabilities Act, hotel, Illinois, in-house counsel, indemnification, indemnify, Jacobson v. Knepper and moga, landlord-tenant relationship, Las Vegas, liability, liable, Mandalay, Mandalay Bay resort and Casino, Mandalay Corporation, Nevada, Nevada Supreme Court, nondelegable duty, nondelegable responsibility, not be accountable, Orange County Florida, preempted, preemption, prevent discrimination, prevention, preventive tips, reasonable do care, regardless of intent, remedial scheme, remedy discrimination, renovate, renovating, retrofit, Rolf Jensen and Associates Inc., Rolf Jensen and Associates Inc. v. eighth judicial District Court of the state of Nevada, settlement agreement, sports circuit, subterfuge for indemnification, summary judgment, the allocation of liability, unlawful discrimination, where the laws, writ of mandamus

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  • state sovereign immunity in Scotus blog
  • The blog for Supreme Court goings on
  • The employer handbook blog
  • Title III and Fair Housing Act Blog (defense)
  • Title III and II ADA blog
  • Title III blog business side (Seyfarth Shaw)
  • Workplace safety and health law blog

Greatest Hits

  • ADA and ADA Related Cases at the Supreme Court: Where They Have Been and What Is Next
  • ADA and the Applicable Statute of Limitations
  • ADA compliance auditing for higher education
  • ADA Compliance Is a Nondelegable Duty
  • Are public colleges and public universities immune from suit as a result of sovereign immunity in ADA matters
  • Can You Get Compensatory and Punitive Damages When Alleging Retaliation
  • Just When Does the Statute of Limitations BEGIN to Run in ADA Cases
  • Service dog v. Emotional support animal
  • Suing state court system for title II violations
  • Temporary disabilities and the ADA
  • What do you have to show to get compensatory damages under title II of the ADA
  • What does it mean to exhaust administrative remedies under title I of the ADA?
  • Why a recent US Supreme Court opinion is a huge victory for title I plaintiffs (mixed motive)

In the Media

  • ABA Blawg 100 2014
  • ADA and ADR
  • ADA Game Changer: CRST Van Expedited v. EEOC
  • ADA Litigation Game Changer
  • Auer Deference blog entry in SCOTUS blog
  • Blog entry discussing oral argument in Bostock, Zarda, and Stephens referenced in SCOTUS blog
  • Blog entry on Impact of University of Texas Southwestern Medical Center v. Nassar on the ADA
  • Blog entry on Judge Gorsuch on Disability Rights Linked to by SCOTUS Blog
  • Blog entry on Sheehan v. City and County of San Francisco
  • CBS money watch article discussing website accessibility litigation.
  • CRST Van Epedited blog entry referenced in over lawyered
  • Death Penalty and Intellectual Disabilities Supreme Court Opinion
  • Disability compliance for higher education interview on why colleges and universities should perform ADA compliance audits
  • Does title IIof the ADA/§ 504 of the Rehabilitation Act applied to employment
  • E-bay's Inaccessibility to the Deaf
  • EEOC affirmative action per § 501 blog entry referenced in March 2016 employment Law blog carnival
  • Employment Law Blog Carnival November 2015
  • Expert Interview Series: ADA Consultant William Goren on What You Need to Know About ADA Compliance
  • February 2016 employment Law blog carnival
  • Finding creative solutions within the law
  • Fisher II blog entry referenced in Scotus Blog
  • Fry oral argument blog entry referenced in Scotus Blog
  • Guest Post on Illinois Business Litigator Blog regarding My Burden of Proof When Dealing with Remediation Blog Entry
  • How Fry playing out blog entry referenced by Scotus blog
  • How the legal industry lets down lawyers with disabilities
  • Illinois business litigator blog featuring my blog entry discussing whether a corporation has a retaliation cause of action under the ADA
  • Impact of Abercrombie and Fitch Decision on the ADA
  • Interstate sovereign immunity in SCOTUS blog
  • Is the Texas House violating the ADA by refusing CART
  • June 2015 ABA Journal article on attorneys with disabilities and the preconceptions they face
  • Law practice today members spotlight
  • legal issues of buying inaccessible technologies article posted to the ABA green room
  • Legal pad radio show interview first run Wednesday, February 12 at 7:30am.; Re-airs at Saturday, February 15 at 3:30pm and Monday, February 17 at 9am
  • Legal pad radio show interview first run Wednesday, January 29 at 7:30am.; Re-airs at Saturday, February 1 at 3:30pm and Monday, February 3 at 9am
  • Legal pad radio show interview first run Wednesday, October 23rd at 7:30am.; Re-airs at Saturday, October 26th at 3:30pm and Monday, October 28th at 9am
  • Let's Talk About Arbitration blog entry and other entries featured on the Illinois business litigator blog
  • MH issues and the State Bar
  • Oral Argument in Sheehan v. City and County of San Francisco
  • PBS News Hour piece discussing accessibility of amusement parks for persons with disabilities
  • Reflections on the development of disability as a diversity concern in the legal profession
  • SCOTUS blog references Blog entry discussing the impact of South Dakota v. Wayfair on Internet accessibility litigation
  • SCOTUS blog references Endrew oral argument blog entry
  • SCOTUS Blog references Fry decided blog entry
  • SCOTUS Blog referencing blog entry that Reviews Supreme Court cases and the upcoming Supreme Court cases vis a vis the ADA/disability rights
  • Sevorson decision analyzed
  • Sheehan decision
  • Supreme Court on Auer Deference blog entry in SCOTUS blog
  • The Physics (and Economics, and Politics) of Wheelchairs on Planes
  • Trimble v. Kroger
  • Voyage Atlanta Profile
  • What's wrong with this job description blog entry featured in December 2015 employment Law blog carnival
  • When to grant more leave after FMLA is exhausted
  • Why ADA is a Good Law

Presentations of interest

  • ADA “Accessible” Websites: What Attorneys Need to Know
  • ADA Hot Issues: Essential Function, Attendance, and Reassignment
  • ADA Hot Issues: Pregnancy, Reassignment, and Legal Issues of Buying Inaccessible Technology
  • Don’t Let The ADA Bite Your Law Firm – Complying With the ADA Instead of Becoming a Target
  • Hot issues in title I and in title II of the ADA
  • Let's Count the Ways the ADA Impacts Your Law Practice
  • Understanding the Americans with Disabilities Act, Fourth Edition – Hot Off the Press – A Brown Bag Series

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