Concepts like “privatization” and “resource sharing” and “public/private partnerships”  sound great in concept, but when it comes to ADA and FHA liability these may result in municipalities and government agencies taking on risks they cannot control. A handful of cases serve to sketch out the problem.

In Colorado a woman with a hearing impairment sued the community association for her senior living facility because it did not provide the kind of assistance she wanted at community board meetings and events. The community association was private, but used facilities from a housing district. The district court found that the municipal housing district could be held liable for the failure of the community association to provide assistance.

This would not be surprising if the access barrier were something related to the construction of the physical premises because they were clearly the responsibility of the housing district. What was at issue in this case though was the failure to provide a sign language interpreter or a computer aided realtime interpreter at meetings organized and scheduled by the private group. The case settled shortly before trial, so the district court’s unpublished opinion remains untested on appeal; however, it was only a small extension of the Ninth Circuit’s decision in Armstrong v. Schwartzenegger, which established the general proposition that a government cannot contract away its liability for ADA violations.

Neither Armstrong nor the Colorado case explored the question of indemnity between a governmental entity and a private contractor that provides services.  It is well established that private contractors do not become public entities and are not subject to Title II simply because they agree to perform government services. This eliminates joint liability under the ADA and FHA. In the purely private realm there is a strong consensus that the ADA does not provide a right of indemnity against the party who actually caused the ADA violation by an innocent but legally responsible property owner.  There have also been consistent holdings that private contractual indemnity for ADA violations are not enforceable because they violate the public policy in favor of increasing the pool of responsible parties. If applied to Title II claims this case law would forbid public entities from obtaining contractual indemnities from the private contractors they hire. The end result: the municipality or other entity is fully responsible for ADA violations created by its private contractors while the private contractors have no ADA or FHA liability at all.

These are all recent cases, and the law may take a different direction. In the meantime, cities, government agencies and other public entities that hire private contractors may find themselves subject to ADA and FHA liabilities over which they have little or no control.