The ADA Does Not Apply Equally to New and Older Buildings

  • Ever wonder why some older buildings are not nearly as accessible as others?
  • Or why only some local government offices are accessible?
  • Our ADA expert Marsha Mazz is here to explain!

Question: The Americans with Disabilities Act became law over 30 years ago. Yet there are still buildings I can’t get into.

Why aren’t more older buildings accessible after all this time? It seems like some buildings get a pass and others don’t.

Help make this make sense!

Answer: In general, the U.S. Department of Justice and the courts consider a building to be physically “accessible” if it complies with the DOJ ADA regulations and ADA Standards for Accessible Design.

However, your observations are correct. The regulations and standards do not always apply the same requirements to existing buildings as to new ones, so they are often not equally accessible.

If a building is undergoing an alteration, the altered areas must comply with the ADA Standards, regardless of the reasons. However, the degree of compliance depends on specific circumstances that must be evaluated case-by-case.

So, what about buildings or portions of buildings that have not been altered since before the ADA became effective? First, would the ADA require improvements to the building’s accessibility if no alterations were planned? That depends on which regulations apply – those for state and local governments (ADA title II) or public accommodations and commercial facilities (ADA title III).

Different Standards for the Government than the Public

Surprisingly, Title II of the ADA does not require a state or local government to make each building and facility accessible. Instead, it applies the concept of program access. This means people with disabilities must not be excluded and must be able to participate meaningfully in government programs, services, and activities.

Let’s say a county government has some accessible motor vehicle administration offices and some inaccessible ones. It could determine that there are enough accessible offices dispersed throughout the county for disabled drivers to access its services. Therefore, it may decide not to make any additional offices accessible until it alters them for some reason.

ADA Title III takes a different approach. Anyone who owns, operates, rents, or leases to a “place of public accommodation” in an existing building must consider removing physical barriers that prevent people with disabilities from accessing their goods and services.

The DOJ regulations define “public accommodations” broadly. Generally, the place is a public accommodation if it is a private (non-government) entity that provides public goods and services. This nets everything from museums to homeless shelters, including stores, professional offices, and private hospitals. However, this required “barrier removal” applies only to the extent that it is “readily achievable,” meaning cheap and easy, considering the public accommodation’s resources.

If, for example, it is not cheap and easy to make a candy store’s entrance accessible, the owner could consider other measures to make their goods and services accessible. Maybe they can install a doorbell in an accessible location where a person who cannot enter can signal the operator that they need curb service.

The barrier removal requirement is a “continuing obligation.” This means that just because removing the barriers was not readily achievable at one time, removing the barrier remains an unfulfilled obligation that must be reconsidered when or if the public accommodation’s circumstances change.

Of Course, There Are Exceptions

Once a state or local government or a public accommodation determines that the DOJ regulations require an existing building to be made more accessible, they must comply with the ADA Standards “to the maximum extent feasible.” This part of the DOJ regulations acknowledges that sometimes compliance is “virtually impossible.” In these rare instances, the regulations require the alteration to “provide the maximum physical accessibility feasible.”

Next, the ADA Standards contain certain “exceptions” for conditions that typically occur in existing buildings and could be too costly to address. Like the DOJ’s “maximum extent feasible” limitation, the ADA Standards allow for “technical infeasibility.” This means that if existing physical or site constraints would make full compliance impossible or require changes to the structure holding up the building, the change will only have to comply to the extent that it is possible and doesn’t affect the structure.

The ADA Standards also contain specific exceptions for existing elements in buildings. These include raised and recessed areas in restaurants; slightly higher thresholds at doors; slightly steeper ramps if the rise is less than 6 inches; smaller, but usable, elevator cab size where the existing shaft cannot be enlarged; and unisex accessible toilet rooms where it is not possible to make both the men’s and women’s rooms accessible.

Although numerous compromises have been made in the ADA requirements for existing buildings, it is important to recognize that the ADA does require improvements to most existing buildings, even when the owner may not be planning an alteration. This is an important distinction between building codes and civil rights laws.