Readily Achievable Barrier Removal

If you own a building or facility that is a Public Accommodation and was built before July 26, 1992, the enforcement date for Title III of the Americans with Disabilities Act (ADA), then the building or facility is considered an “Existing” structure and you are required to remove barriers to the extent that it is Readily Achievable to do so. A conservative estimate is around 5-7 million businesses were affected when the ADA

regulations took effect in 1992, and it applies to private businesses and nonprofit organizations that are considered “public accommodations”, which include:

• Restaurants, hotels, theaters

• Retail stores, banks, and professional offices

• Hospitals, private schools, and gyms

What does readily achievable barrier actually mean? “Readily achievable” is defined as:

Easily accomplishable and able to be carried out without much difficulty or expense.

This standard is intentionally flexible and considers:

• Nature and cost of the barrier removal

• Overall financial resources of the facility and parent organization

• Impact on operations

“Readily achievable” is subjective and context-dependent, which makes it a frequent point of contention in ADA lawsuits. Here’s why:

• No fixed checklist: What’s “readily achievable” for one business may not be for another.

• Burden of proof: Plaintiffs must show that a barrier exists and that removal is feasible. Defendants must justify their barrier removal actions or inactions.

• Financial ambiguity: Courts may weigh the cost of removal against a business’s resources, which can be hard to quantify. Also, if the barrier was removed early on, such as 30 years ago or longer, with a track record of success, then current detailed financial documentation may be irrelevant.

• Incremental obligations: Businesses may be expected to remove barriers over time as resources allow, creating ongoing liability exposure.

To effectively use the “Readily Achievable” barrier removal defense, businesses should consider the following best practices:

• Document Barrier Removal Efforts: Businesses should keep detailed records of barrier removal efforts, including assessments of what changes were made, how those changes improved accessibility, and why they were reasonable given the facility’s constraints (site, financial, etc.).

• Maintain Evidence of Access and Safety: Evidence showing that the barrier removal was effective in improving access for individuals with disabilities (such as access logs, customer feedback, or lack of accidents).

• ADA Compliance Audits: A proactive ADA compliance audit can help businesses stay ahead of potential issues and ensure that any required modifications are implemented in a timely and reasonable manner. It can also help bolster the defense by demonstrating a sincere effort to identify and address accessibility barriers.

• Video Surveillance: Strategically placed video surveillance along accessible routes serves as a powerful tool for verifying “readily achievable” barrier removal efforts and substantiating accessibility-related claims. It provides objective, time-stamped evidence of compliance activities and user interactions with modified features.

  
  

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