The ADA and FHA are peculiar anti-discrimination laws. We usually think of discrimination as treating people differently. The ADA and FHA, on the other hand, start out by defining a class of people – those with disabilities – who are different in their physical or mental abilities. The statutes then require that this different class of people be treated differently when different treatment is required to give the same opportunity or access. The ADA and FHA require affirmative action in favor of the disabled. The required affirmative action is sketched out in the statutes and then described in painstaking detail in the regulations promulgated under them – the Accessibility Standards and their predecessor Accessibility Guidelines.
The Accessibility Standards are for the most part straightforward. Accessible routes must be so wide and no more than so steep. Bathrooms must have such and such clearance at toilets and sinks. Some of the Accessibility Standards are more open to interpretation, but in general they provide real estate owners and business operators with the comfort of knowing just what they must do. For some plaintiffs though the Standards are enough. They claim that even if the owner has complied with the Guidelines or Standards there can still be illegal discrimination in the way a facility is built.
A recently filed case in the Northern District of Texas illustrates the problem. The property is a large strip shopping center built on land that slopes from one end of the center to the other. The individual spaces are therefore on different levels, and the front sidewalk has steps at each change in level. In order to create ramps that are long enough to have the shallow slope required by the Accessibility Guidelines the owners ran the ramps out into the parking lot and then back in again. Someone in a wheelchair makes a detour into the parking lot to go around the step. This solution complies with the accessible route requirements of the Guidelines.
The problem (according to the lawsuit) is that this solution discriminates against those in wheelchairs because they must go out into the sun or rain while those who can navigate the steps can go from one store to another under cover. For this plaintiff it wasn’t enough that the owner took the affirmative action required by the Guidelines in effect when the property was built. The owner, he claims, should have gone further and made sure that both the disabled and the general public got exactly the same protection from sun and rain.
This claim fails to recognize that the ADA and FHA are not about equal treatment of the disabled, but about equal access to goods and services. Equality of treatment would not require any ramp at all, but the ADA and FHA recognize that to give equal access there must be unequal treatment, that is, affirmative action in the form of a special ramp. But when affirmative action is required it is only fair to tell property owners and operators just what they are required to do. “Don’t treat people differently just because of their race or religion” is reasonably easy to understand. “Treat the disabled differently in a way that accommodates their particular disability and give equal access” isn’t so clear. A rule that puts the burden on owners and operators to not merely follow the Guidelines or Standards, but to more generally guarantee equality is an invitation to litigation. It can only benefit the lawyers who get to litigate a claim too uncertain to be the subject of dismissal or summary judgment.
Last year, in Nokunas v. Seashore LP the Eleventh Circuit held that unless the Accessibility Guidelines require something, there is no ADA violation in not providing it. The case involved a beach access walkway that could not be used by individuals in wheelchairs. The Guidelines require at least one accessible route to the property boundary, but don’t require an accessible route to every property boundary. Because there was already an accessible route to the front boundary of the property another one to the beach was not required.
This is a sensible approach to cases in which compliance with the applicable Standards or Guidelines do not result in perfect equality. When a law requires affirmative action it must describe what the action is so that property owners and business operators have a reasonable degree of certainty about what the law does and does not require. On those matters about which the Guidelines or Standards speak the only kind of actionable discrimination should be a failure to follow them.