More on the Accessibility of Older Buildings

In our latest Ask the ADA Expert blog, Marsha Mazz elaborated on why some older buildings are not nearly as accessible as others. Many people took to social media with questions, comments and concerns. Marsha responded to the following…

It’s up to us to enforce the ADA

Jim Beck says:
I believe lawsuits under the readily achievable standards are winnable. The Department of Justice anticipated that over time, “easily accomplishable and able to be carried out without much difficulty or expense” would result in public accommodations putting resources aside such that (over time) barrier removal becomes “easily accomplishable.” Since this is a civil rights law, there are no ADA police – we have to sue and show that these existing facilities have done nothing.

The existing facilities standards were never meant to be read as ‘you don’t have to do anything’ or ‘you’re grandfathered in.’ Yes, it is a squishier standard, but it was designed that way intentionally. 30+ years since passage, public accommodations are expected to have accomplished barrier removal. It’s up to us to enforce. Not easy but that’s what it is.

Masha Mazz responds:
Jim, I couldn’t agree more with your analysis. Barrier removal was intended to result in small changes over time that would eventually amount to real changes. However, as you rightly pointed out, we, people with disabilities, have a role in implementing the law. In my experience, public accommodations tend to do nothing when they encounter barriers that are not readily achievable to remove.

The law requires something, even if it is only an alternative to barrier removal. No public accommodation is “grandfathered,” not to mention that the IRS provides tax incentives for businesses of all sizes to remove barriers. How is it that so many businesses that pay taxes don’t find these incentives attractive?

Make accessibility the priority instead of an afterthought

Carolyn McGhee says:
The thing that bugs me is that making buildings accessible is only considered when major renovations are done. I get why but at the same time I feel like if we’re going to continue using public buildings we need to make it so everyone in the public can use them completely. I’ve even seen cases where there were first, second, third, or lower levels to a building but only one elevator giving access to only one part of the building.

There was a situation where a classmate broke his leg and had to be carried down the stairs to class because there was no elevator to that area. Anyone could have an accident at any time and end up with a disability. If we made accessibility the priority instead of an afterthought it’d be much less of an issue when something does happen. But we kind of approach it like the designers of the Titanic.

Marsha responds:
Hello Carolyn. I share your frustration. Because barrier removal is accomplished in such tiny increments, it does seem like nothing gets done except when major alterations occur. However, the general rule in both the ADA and in the building codes is that “you fix what you touch.”

The problem is that these piecemeal access improvements don’t amount to much until the building owner has altered nearly every space in the building and all the accessible features are connected by an accessible route. For this reason, the ADA has a requirement to go beyond the scope of an alteration when an area of the building containing a “primary function” or “major activity for which the facility is intended” is altered. The Department of Justice defines “primary function” very broadly and chiefly by what areas are not “primary function areas” i.e., “mechanical rooms, boiler rooms, supply storage rooms, employee lounges or locker rooms, janitorial closets, entrances, corridors, and restrooms.”

So, when someone alters an area containing a “primary function,” they are required to spend up to an additional 20% of the overall cost of the alteration to provide an “accessible path of travel.” The term “accessible path of travel” means: the toilets, telephones, drinking fountains, and accessible route serving the altered areas. The accessible route includes the route from the boundary of the site to the altered area. If parking is provided, it also must be made accessible using those funds. Once the 20% funds are expended, the public accommodation has met their obligation until the next time they alter an area containing a primary function.

Speak up and be part of the solution

Aurora Rose Andromeda says:
I was always under the impression any building that is built from 1975 and on had to have some sort of accessible accommodation.

I know some historic older buildings like City Hall in Philly have made portable ramps to the entrance to the hall. This way people can enter inside. They also went as far as making videos of the upper levels of the hall for people to watch in a viewing room. Anyone who cannot climb the steps or use a wheelchair can still get the experience of being part of the other areas of the City Hall. The tour guides talk about the video or the photo album to guests so they know what each picture/video means. This way all their guests are included. I know many other places don’t do this and I wish they did. It doesn’t take much to record or take images of upper levels of historic buildings so everyone can enjoy their visit.

Yet, I know buildings have cut corners, especially ones built in 1975 or after. They will put grab bars in standard stalls and consider that accessible. I’ve seen a lot of faults and “fake” adaptions just so a location can be considered accessible when they are not. I’ve filed ADA reports and yes sometimes they get ignored, but if I push then sometimes they are investigated.

If we don’t speak up and stand our ground and make our voices heard to make change then who will? I hear a lot of people complaining this isn’t right or that isn’t fixed or whatnot. They do nothing just complain, rather than report it, going to social media or the news. Issues with the ADA and how buildings are handled can’t be fixed/changed if no one speaks up.

Marsha responds:
Dear Aurora Rose, thank you for being one of the people who speak up. You are absolutely right that we have to be part of the solution. Regarding the date 1975, a number of laws predated the ADA. Two important ones were the Architectural Barriers Act of 1968 (ABA) and Section 504 of the Rehabilitation Act of 1973. The ABA applies only to federal buildings and certain other buildings that are built with federal money for construction, not for programs. Section 504 requires federally funded programs to be accessible – to accomplish this, the buildings must be accessible.

The buildings covered by these laws represent a fairly small segment of the built environment and most of them house government programs of some sort. The ADA was the first federal law that extended accessibility requirements to the private sector and state or local governments regardless of whether they receive federal money. Also, many states have had accessibility requirements of some sort in their building codes since the 1970s – Pennsylvania may be one of them.