ADA has affordances for "nearly compliant" facilities.
§ 36.304 Removal of barriers.
(d) Relationship to alterations requirements of subpart D of this part.
(3) If, as a result of compliance with the alterations requirements specified in paragraph (d)(1) and (d)(2) of this section, the measures required to remove a barrier would not be readily achievable, a public accommodation may take other readily achievable measures to remove the barrier that do not fully comply with the specified requirements. Such measures include, for example, providing a ramp with a steeper slope or widening a doorway to a narrower width than that mandated by the alterations requirements. No measure shall be taken, however, that poses a significant risk to the health or safety of individuals with disabilities or others.
Thanks for the additional information. Do you know what "readily achievable" means legally? I suspect it means "can not feasibly be accomplish on the property in question", such as if there's no way to widen a door given load bearing walls, or if a ramp of the appropriate specifications would go past the edge of the property. I imagine "it's too costly to do and keep this business functioning" is not a valid reason, given the examples we are seeing of businesses closing.
What I think it comes down to is whether a real person with disabilities thinks it's worth bringing and/or continuing the suit. Someone bringing a suit to make their life better (and the lives of people in similar circumstances as well), might take things into consideration like whether another business is likely to use that location any time soon if a large outlay is required to fix the problem, and whether removing a local business for everyone is a good solution. Someone bringing suit just for monetary gain (which can be done by someone with a real claim, I understand) may be less likely to do so, resulting in a net loss for the community.
> Do you know what "readily achievable" means legally?
It's quite clearly defined in statute (and includes cost):
> The term "readily achievable" means easily accomplishable and able to be carried out without much difficulty or expense. In determining whether an action is readily achievable, factors to be considered include—
> (A) the nature and cost of the action needed under this chapter;
> (B) the overall financial resources of the facility or facilities involved in the action; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such action upon the operation of the facility;
> (C)the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and
> (D) the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative or fiscal relationship of the facility or facilities in question to the covered entity.
Thanks for the clarification. I'm left confused about why this is happening then. It seems well designed to not allow for the situation we see described here, yet this situation is happening and similar situations are referenced.
That leads me to believe one or more of:
a) the case cited here has more extenuating circumstances that are not being reported, which I see as likely as articles have a point of view to express and I'm willing to believe the author may leave out information they deem not contributing to that point (whether through malice or incompetence)
b) there are additional laws at the state or local level which are less lenient
c) there are other parts of this law or other Federal laws which interact in a way limiting or making ambiguous portions of this law
d) there is specific case law that severely limits how these escape valves are used in practice
I have no idea how any of these apply, if any do, but it's odd that there are specific allowances for businesses to no be forced to shut down, yet, we have examples of exactly that.
§ 36.304 Removal of barriers.
(d) Relationship to alterations requirements of subpart D of this part.
(3) If, as a result of compliance with the alterations requirements specified in paragraph (d)(1) and (d)(2) of this section, the measures required to remove a barrier would not be readily achievable, a public accommodation may take other readily achievable measures to remove the barrier that do not fully comply with the specified requirements. Such measures include, for example, providing a ramp with a steeper slope or widening a doorway to a narrower width than that mandated by the alterations requirements. No measure shall be taken, however, that poses a significant risk to the health or safety of individuals with disabilities or others.