Thursday, April 11, 2019
Sarah Dill Staff Reporter (2017 – 2018)
The Americans with Disabilities Act (“ADA”) aims to protect the 56 million people living with a disability in the United States. Working to include the needs of that many individuals, it should come as no surprise that the massive federal statute needs improvement. In 2010, the ADA was amended to include better accessibility at banking locations. However, not all banks made the proper changes to their ATMs, causing compliance issues that opened the door to many lawsuits.¹ Although the ADA was meant to create a level playing field for everyone, not all companies and schools follow the letter of the law to ensure that everyone is equally served. As with the failed ATM accessibility changes, businesses forget to consider the consequences that could result from failure to adhere to the policies within the ADA.
One such area that has been forgotten by many companies deals with emergency situations and the need to evacuate. Few states regulate emergency plans for individuals with mobility disabilities. In Brooklyn Center for Independence of the Disabled v. Bloomberg, residents of the city of New York sued the city for failing to address evacuation concerns for persons with mobility disabilities. The court found that New York discriminated against disabled persons by not addressing the evacuation concerns.² This lawsuit provided a significant victory for the disabled community and highlighted a serious issue facing these individuals.
Justice Cardozo once said, “danger invites rescue.” What so many businesses do not realize is the duty they owe to their employees and any visitor to their establishment. This duty, or requirement to act, is known as the “rescue doctrine,” which is a set of guidelines that explains what actions one must take to help another person. When considering the ADA, companies need to think about (and implement) emergency plans for all persons who use their office, retail establishment, or school space. Choosing not to address this risk would likely violate the ADA, which could result in fines or lawsuits.
Many may think that by meeting building codes, the entity satisfies the duty owed to persons with mobility disabilities. However, this is usually false. Even though building codes must meet strict criteria, most codes only require a way for someone to enter and move within the building. There are few rules, at most, detailing how persons should evacuate a building. Frankly, the risks of forgetting to include disabled persons in an emergency plan are not only life-threatening for the individual but also dangerous for an entity.
Some states, like Illinois, require emergency evacuation plans from almost all companies within the state.³ Requiring companies to engage emergency plans for all individuals is a practical way to ensure businesses and schools are checking their protocols, which means enacting safety measures ahead of time may potentially mitigate the liability on entities. Surprisingly, Texas does not have a similar law in place; which means persons with disabilities are at risk of injury during an emergency, and companies may be liable for those harms.
Considering the risks to a business, as well as persons, it is vital that an entity reflects on how the ADA affects them. Although not all emergencies are foreseeable, the law usually favors the injured party. Addressing the duty to rescue would provide the best outcome for all, limiting liability on entities while protecting employees and consumers.
Sources ¹ Leslie A. Gordon, Banks face a slew of suits over their ADA-violating ATMs, ABA Journal (Feb. 15, 2019, 11:40 AM), http://www.abajournal.com/magazine/article/banks_face_a_slew_of_suits_over_their_ada-violating_atms. ² The Committee on Legal Issues Affecting People with Disabilities, DISABILITY HOUSING RIGHTS AND BUILDING CODES OF NEW YORK, NYC Bar, http://www.nycbar.org/pdf/report/uploads/20072100-DisabilityHousingRightsandBuildingCodesofNewYork.pdf. ³ Emergency Evacuation Plan for People with Disabilities Act 430 ILCS 130 (2002).