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ADA Compliance Matters

September 1, 2010

By Lesley M. Walker

The NAR Membership Policy and Board Jurisdiction Committee is actively considering an amendment to Interpretation No. 39 of the NAR Bylaws. The proposed amendment addresses NAR member boards’ legal obligation to comply with Title III of the Americans with Disabilities Act (ADA) and would prohibit association functions from being held “at facilities that are not accessible to members with disabilities.” If the committee approves the proposal, it will be presented to the NAR Board of Directors for a vote at its annual meeting in New Orleans in November.

Signed into law on July 26, 1990, the ADA marked a major victory for disabled Americans. Title III of the ADA specifically aims to end discrimination by private entities that operate a “place of public accommodation,” and requires that any -existing architectural and communication barriers be removed (where such removal is readily achievable and would not cause undue hardship to the entity) so that disabled persons are provided equal participation and benefits.

This mandate crosses the many functions and activities of REALTOR® associations. As a place of public accommodation under the ADA, your association must achieve ADA compliance, and remain compliant. Compliance with Title III of the ADA is not only a legal obligation, but also smart business.

Accessible office space

You should carefully consider and assess the physical structure of your association building and office space to ensure that there are no barriers. There are many simple and relatively inexpensive steps you can take to achieve office space accessibility, including:

• Rearranging tables, chairs, vending machines, and other furniture

• Lowering the paper towel dispenser in the bathroom

• Removing high-pile, low-density carpeting

• Widening doors

• Installing curb ramps

• Creating and designating handicapped parking spaces

• Installing grab bars in toilet stalls

If you legitimately believe that alterations to the office space are not readily achievable, or if the office space falls within one of two narrow exceptions, your association may not be obligated to make such alterations.

The first exception requires you to demonstrate that the physical structure of the office space makes it structurally unfeasible to meet the accessibility requirements under the ADA. The second exception exempts facilities designated as historic under state or local law and where the removal of barriers would compromise or destroy the historic significance of the building. Even in these instances, the accessibility requirement is not eliminated altogether; rather, you would be required to make the association’s goods, services, facilities, privileges, advantages, or accommodations available through other readily accessible means. For example, you or your staff can accommodate a visitor by coming to the door to meet them, delivering goods and services to the member’s home, or being available to retrieve otherwise inaccessible items.

Educational courses

Many associations offer educational courses related to licensing, certification, or continuing education credit. These types of activities are also covered under Title III of the ADA. An association offering these courses and examinations must do so in an accessible location that can accommodate the needs of disabled participants. If the location -cannot accommodate disabled participants, you’re required to make alternative arrangements to provide a comparable course or examination to the disabled attendee(s). However, as the goal of the ADA is to integrate disabled individuals with the rest of society, every effort should be made by the association to hold the examination or course in the most integrated setting possible.

Beyond the physical location of the examination or course, you have an obligation to provide auxiliary aids or services an attendee may require, such as large-print course materials or an assisted-listening device. As a best practice, you should ask participants in advance whether they require special provisions or accommodations. This way, you can plan ahead. Keep in mind, however, that you’re not required to provide a particular accommodation, but rather an appropriate accommodation that will allow the individual to participate in and take advantage of the course or examination in the same manner as other participants.

Conferences, events, and meetings

In addition to regular business, your association holds various meetings, seminars, and conferences—as well as charity or social events—often in a space other than their offices. When selecting an outside venue, keep in mind that you can shift the obligation for ADA compliance onto the leased space (such as a hotel, convention center, or concert hall) by adding the appropriate language into the contract.

Regardless of who has the legal obligation in the contract to comply with the ADA, always seek out a venue that is ADA compliant. Most public golf courses, for example, should already be ADA compliant. The fact that all members may not be able to play golf does not prevent the association from hosting such an event; you just have to hold it at a location that is ADA compliant and, to the extent possible, accommodate special needs.

Make it a practice to ask meeting attendees in advance whether they require any special accommodations. It’s also important to ask the venue how it plans to accommodate any special-needs requests if the compliance has been shifted to the venue. If the venue does not have the ability to provide the necessary auxiliary aids or services, you must be prepared to arrange for such aids or services to be available.

Consequences of noncompliance

Achieving ADA compliance will take effort and commitment, but the alternative can cost you much more—reputation, money, and distraction from the business of serving your members. Members of the public, REALTORS®, and the Department of Justice can file a lawsuit if your association is not complying with the ADA. If a court finds you in violation of the ADA, it can grant an injunction or restraining order against an association event, require that you provide auxiliary services, or require that you make your facilities accessible to disabled individuals. Courts can also grant monetary damages to an aggrieved individual, and in instances where the Department of Justice brings action, the court has the discretion to order the payment of civil penalties. It is prudent to get out in front of the issue of ADA compliance rather than wait for it to find your association through lengthy and costly court action.

Ensuring that all your members and the public can enjoy the same access to your products, services, and resources is well worth the effort.

More Online
• Field Guide to Complying With The Americans With Disabilities Act (ADA) http://www.REALTOR.org/library/library/fg716

• Americans with Disabilities Act Compliance Kit
http://www.REALTOR.org/letterlw.nsf/pages/92adacompliancekit

Lesley M. Walker is a staff attorney of the NATIONAL ASSOCIATION OF REALTORS®. Contact her at 312-329-8834 or lwalker@realtors.org.