Could a design professional be subject to civil rights prosecution under the Americans with Disabilities Act ("ADA") if his or her design is involved in a charge of discrimination by a disabled person? This question is important because the fines and penalties associated with a civil rights action are not insurable under most professional liability policies. The first court to address this issue has determined that design professionals cannot be directly liable under the ADA, however, that court may not have the final word.
In Paralyzed Veterans of America v. Ellerbe Becket Architects & Engineers, P.C., a group of disabled veterans sued Ellerbe Becket Architects & Engineers, P. C. ("EBA"), and others, seeking to stop them from building the MCI Center Arena in Washington, D.C. because EBA's design of the arena allegedly violated the ADA. EBA filed a motion to dismiss the lawsuit. At issue was whether or not two provisions of the ADA impose liability on design professionals. First, §302(a) states:
No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of ... any place of public accommodation by any person who owns. leases ... or operates a place of public accommodation.
The Court found this section inapplicable to EBA as it neither owned, leased nor operated the facility. The next relevant provision, §303, states:
As applied to public accommodations and commercial facilities, discrimination for purposes of §302(a) includes .. a failure to design and, construct facilities ... that are readily accessible to and useable by individuals with disabilities.
The veterans argued that design professionals are liable under the ADA because §303 mentions the design function. Also, they believed that the ADA would be best served by holding design professionals directly liable because design professionals are uniquely positioned to ensure that the design of a new facility complies with the ADA by virtue of their professional expertise, experience, knowledge and resources. The veterans did not argue this position alone. The Department of Justice ("DOJ"), the government agency charged with prosecuting violations of the ADA, also strongly believes that the ADA applies to design professionals and filed a "friend of the Court" brief in this case arguing that its interpretation of §303 includes design professionals as liable parties.
EBA argued, and the court agreed, that the plain language of the ADA reveals at least two reasons why design professionals should not be directly liable. First, the phrase "design and construct" in §303 is distinctly conjunctive. It refers only to parties responsible for both functions, such as facility owners who hire the necessary design and construction experts for each project. Second, §303 defines "discrimination for purposes of §302(a)." Thus, the limitation in §302(a) to owners, operators and lessors also applies to §303. On a broader scale, EBA argued that Congress did not chose design professionals to be the focal point for remedying discrimination under the ADA simply because they do not have the broad control of an owner, tenant or operator. Accessibility is not solely a function of architectural design. Construction methods, maintenance and operating policies all determine whether a public accommodation is accessible. Because the owner, tenant or operator controls all of these aspects, the ADA appropriately focuses liability where ultimate control resides.
Obviously, the court's ruling in this case does not make design professionals immune from liability for designs which result in violations of the ADA. The court merely excluded design professionals from the class of people potentially liable to disabled persons. By their contracts, design professionals answer to their clients. If a design professional's services fall below the applicable standard of care with regard to the ADA, then that design professional will be exposed to liability to his or her client. Being liable only to the client, however, is an advantage because design professionals can manage their potential exposure through their contracts. In a well-drafted contract, the design professional can choose a cost-effective mechanism for dispute resolution (e.g. arbitration or mediation), can choose a favorable venue, and can include provisions, such as a limitation of liability clause, that minimize or reduce risks. These contractual devices would not be available to a design professional who is directly liable to disabled persons under the ADA.
While it seems that the Court's ruling in this case is good news for design professionals, it is important to note that the direct precedential value of this decision is limited to the Federal District Court of the District of Columbia, and is not binding on courts outside of that jurisdiction. Liability of design professionals under the ADA continues to be an open issue, especially since the DOJ continues to advocate its position that design professionals are directly liable. In fact, the DOJ recently brought an enforcement action in the Pennsylvania Federal District Court against an architect for failing to design in compliance with ADA standards. That case settled when the parties entered into a consent order in which the architectural firm agreed to pay a civil penalty of $8,000 and agreed (along with the building owner) to make substantial modifications to the facility.
Regardless of how the courts resolve this issue in your jurisdiction, a design professional must take steps to guard itself from potential exposure. In addition to generating a high quality product that has been reviewed specifically for ADA compliance issues, a design professional can address the ADA in his or her contracts by including a provision that describes the respective obligations of both the design professional and owner. Compliance with the ADA is determined on a case-by-case basis and a design professional cannot know with any degree of certainty whether a design will strictly comply. This should be set forth in the contract. Additionally, the design professional must be wary of any language that requires compliance with "all laws, codes, standards and regulations." Any contract language that requires the design professional to provide a certification, guarantee or warranty that a building is in compliance with the ADA should be deleted. By certifying or warranting compliance, you are assuming a level of lability well beyond the standard of care required by law, and that extraordinary liability may not be insurable. Of course, PTLCB&L stands ready to assist you with this or any other contract issues that may arise.