Are emergency responder facilities, like fire departments, required to be constructed with accessible features? How about the locker rooms for a D1 university? These questions come up from time to time through our technical assistance line and I thought it’d be a good topic to cover on the blog. I’ll admit, typing the question into a search engine does provide the right answer through AI, but it lacks the insight that I feel I can bring to create a greater understanding of the bigger picture.
When these questions come in, they can be presented in a very reasonable manner. "Emergency personnel must be very physically capable individuals, so why would they need accessible features at the fire station?" "Division 1 basketball players are physically gifted people, and accessible features are a waste of money in their locker rooms." "The public facing areas should be accessible, but shouldn’t the areas only used by these “elite” individuals be exempted from accessibility?" First, let’s examine the last question about public vs “private” areas. The problem with that reasoning is that it applies the logic of altering existing facilities, a lesser standard, to new construction, a higher standard.
Facilities constructed prior to the passage of the ADA can be very difficult to retroactively make fully accessible. The ADA doesn’t even require that old facilities be universally brought into 100% compliance with the ADA Standards. There are times where it’s not about expense but is technically infeasible to do so. A public entity (Title II) has an obligation to make their programs accessible for existing facilities. This is where the “public facing accessibility” logic comes from. It’s like covering a bruise with makeup. What’s presented to the public is acceptable, but the underlying problem still exists. When you design something new without the limitation of existing constraints, you have the opportunity to literally build-in access from the start.
Further, the 2010 ADA Standards have very few circumstances where the design of new construction is permitted to deviate from the access requirements of the ADA: Structural Infeasibility and Equivalent Facilitation. Structural infeasibility is meant to apply in unique circumstances where the characteristics of the terrain make compliance with the Standards virtually impossible. This could apply to constructing a facility in a canyon between a cliff’s rock face and a river. Equivalent facilitation is where a new design or technology can provide at least as much access, if not more, for people with disabilities as the ADA Standards require. That’s it. But what about the undue burden argument? What if it’s too expensive to include access into these new facilities?
Including accessible features into new construction is a tiny fraction of the overall cost to constructing a new facility. To say doing so is an undue financial burden would be very difficult to support. More importantly, the limitation of undue burden under the ADA is not a general limitation. Undue burden applies to very specific circumstances, which are not found in either new construction or planned alterations. This was made clear in the court case of Kinney v. Yerusalim in 1993. The City of Philadelphia tried arguing that updating existing curb ramps during planned alterations would be an undue burden to the city. The court cited that undue burden could apply to program access improvements where undue burden is explicit but does not apply to new construction or alteration projects that occur systematically.
You might be thinking that I got off track- "That it’s all well and good for facilities to be accessible for people with disabilities, but what about the fact that people with disabilities won’t be using those facilities?" My counter argument is: How can you be so certain of what people with disabilities are capable of? How can you be so sure you can predict the future? Let’s look at the D1 basketball example.
The basketball team is a program of a public university and could be viewed as an activity, benefit, or part of the education of a private school. In everyday terms, these are programs. Programs can change over time. Programs can be added over time. Is it possible that someone might want to start a wheelchair basketball program at a university in the future? Why not? If the facility is built to exclude these athletes, how can they receive an equitable opportunity? How can anyone be 100% certain that a program like this will not materialize in the future?
"But what about the fire department? There are demanding physical standards that must be met to work there." A DOJ document titled “Guidance to the 2010 Standards” directly addresses this objection: “The ADA does not exempt spaces because of a belief or policy that excludes persons with disabilities from certain work.” My counter question is: “Are you prepared to say that a fireman who lost their foot the line of duty, who is otherwise qualified and fit for work with the use of a prosthetic, cannot benefit from grab bars in the firehouse shower?” A good movie from 2000 titled “Men of Honor” is based on the life of a man named Carl Brashear. The theme of the movie is how defiant Carl is to adversity, being either overt racism in the mid-20th Century or preconceived attitudes toward disability. Carl is a black US Navy diver who loses his leg on the job during the cold war. It’s worth watching. The guidance continues that areas used exclusively for emergency personnel are used more like residential dwelling units than transient lodging. These relatively more relaxed requirements for residential dwelling units should address the concerns regarding “unnecessary” accessible features. These requirements allow for a degree of upgradability in the design so that access can be added when needed.
People with disabilities can be very capable. As a Paralympian, I’ve witnessed people with disabilities performing physical acts with as much skill and determination as the fittest able-bodied athletes. A preconceived notion about disability shouldn’t outright deny access for the duration a facility exists.
The ADA celebrates its 35th anniversary this year and I can't think of a better way to celebrate than by examining our own implicit biases towards people with disabilities. A lot can change in the next 35, 70, or 100 years. Unless you have a crystal ball and can be certain of those assumptions, accept that designs should meet the ADA’s requirements and people with disabilities should have equitable opportunities.