While reading the latest ADA case reports this arresting statement caught my eye:

“The [ADA] does not ordinarily require the owner of a facility to take affirmative measures to make the facility accessible to and usable by persons with disabilities.”

Davis v. John S. Ciborowski Family Trust,  2013 WL 1410007 (D.N.H. 2013). The statement notes that “in certain circumstances” barrier removal is required, but still seems to stand the common understanding of barrier removal on its head. I think I can fairly say that most of the ADA bar, whether representing plaintiffs or defendants, assumes that barrier removal is required in all circumstances, and is the rule rather than the exception.  However, when a federal district judge says something, it is usually worth thinking about, so I went back to the statute to see whether spending too much time on the specifics of what constitute barriers and what is reasonable in their removal might be tempered by looking back at the big picture.

Section 12181(a) in Chapter 42 of the United States Code has the basic prohibition on non-discrimination:

No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation . . .

“Barrier removal” is found in subsection (b)(2)(A)(iv), which provides:

“For purposes of subsection (a) of this section, discrimination includes– . . . a failure to remove architectural barriers . . . where such removal is readily achievable.

Putting (a) and (b)(2)(A)(iv) together like this highlights a point I think has been overlooked in barrier removal litigation; that is, that Title III forbids discrimination against individuals. There is often talk in the disabled rights community about how long property owners and operators have had to remove barriers to access, but one reasonable reading of the statute is that there is no discrimination until an individual encounters and demands removal of a barrier to access.

This is clearly the law under (b)(2)(A)(iv), which concerns modifications of practices and procedures. The plaintiff must request a modification and be refused before he can file suit. See, Dudley v. Hannaford Bros. Co., 333 F.3d 299, 303 (1st Cir. 2003).  It is equally clearly not the law for barrier removal in the 9th and 11th Circuits. See, Skaff v. Meridien N. Am. Beverly Hills, LLC, 506 F.3d 832, 846 (9th Cir. 2007), Ass’n of Disabled Americans v. Neptune Designs, Inc., 469 F.3d 1357, 1358 (11th Cir. 2006). Other courts have used the lack of pre-suit notice as a factor in the denial or reduction of fees, see, Ass’n for Disabled Americans, Inc. v. Integra Resort Mgmt., Inc., 385 F. Supp. 2d 1272, 1279 (M.D. Fla. 2005). However, it is not listed as an element of the claim as it is in policy and procedure cases.

I think there is a reasonably strong argument that under the language of the statute the “failure to remove” a barrier under  subsection (b)(2)(A)(iv) is no different than a “failure to make reasonable modifications”  under subsection (b)(2)(A)(ii).  Despite the rigidity of the pronouncements in the Ninth and Eleventh Circuits I think there may be room for an argument that barrier removal discrimination cannot occur until the owner or operator has received and rejected a demand for removal of the barrier.  After all, the statute defines discrimination is the “failure to remove” the barrier, not its mere existence, and although the ADA Standards and Guidelines are a helpful guide to what constitutes a barrier, they apply on their face to new construction and alterations, not barrier removal claims. Standards §101.2  Like a policy, a barrier to access does not discriminate until it is identified and its removal demanded. Instead of regarding a pre-suit demand as a procedural requirement, which it is not, it should be regarded as an element of the plaintiff’s claim for discrimination, for until the defendant refuses to remove the barrier there has been no discrimination at all.