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One of the most intriguing issues confronting the construction industry is whether the Americans with Disabilities Act (ADA) applies to design professionals on design–build projects. The issue has been fueled by the result of several lawsuits by the United States Justice Department against Ellerbe Becket, a national A/E firm headquartered in Minnesota. The Justice Department contends that Ellerbe Becket violated the ADA by designing several new sports arenas and stadiums without providing handicapped patrons with "lines of sight" to the floor or field of the facility comparable to those of non–handicapped patrons.
Mixed Reviews. In a case involving the construction of the MCI Center in Washington, D.C., a D.C. federal court accepted Ellerbe Becket's arguments and dismissed it from the suit. However, federal courts in Minnesota and Florida have found Ellerbe responsible for violating the ADA. The Minnesota case, decided on September 30, 1997, provides some interesting background on the various positions being taken by the parties.
The Justice Department's liability theory has been that Ellerbe Becket failed to "design and construct" new commercial facilities or public accommodations which are
accessible and usable by persons with disabilities. Ellerbe Becket contended that compliance with the ADA rests with those who "own", "lease", or "operate" public
facilities. A/E's do not fall within this group. Moreover, Ellerbe Becket argued since they only provided design services and did not construct the facilities, its actions
were outside the scope of the statute.
The Minnesota court rejected Ellerbe Beckett's contentions for two reasons. First, the court concluded that Ellerbe Becket's literal translation of the statute could
result in questions on the responsibility of adherence to the ADA based on whether a facility is commercial or public. With regard to Ellerbe Becket's second contention, the court stated that the services of the architect in administration of the construction contract may constitute "construction".
The two differing opinions result from the wording of the ADA. The plain language of the statute favors the interpretation expressed by the court in the D.C. case in favor of Ellerbe Becket. However, both the Florida and Minnesota courts took a more activist role and clarified a perceived ambiguity by overlooking the defect in the statute itself. The end result is that unless the statute is revised, or unless a higher authority judges otherwise, architects and engineers are at risk for violations of the ADA in the design of public accommodations and commercial facilities.
Role of Design–Builder. While one can argue about whether an A/E is engaged in both "design and construction", design–builders clearly fulfill this dual requirement. Many have taken the position that this requirement is intended to relate to those who own or use the facilities, not those providing services to achieve such use. However, even though it may not have been intended by Congress that a service provider (such as a design–builder) be liable under the Act, the language creates some issues — particularly if the design-builder is required to follow some specific requirements that the owner or design criteria consultant has established in the RFP.
This information is provided by Victor O. Schinnerer & Company, Inc. as the program administrator for the CNA Professional Liability Insurance Policy for Design Professionals. The CNA/Schinnerer Program is the Commended Program of The American Institute of Architects and the National Society of Professional Engineers.
In each issue of Constructive Comments we answer questions on important contractor issues. Do you have a question you would like answered? Please submit all questions to: Attention: Constructive Comments, at info@schinnerer.com or fax to 301-951-5444.
This article is taken from Constructive Comments, Vol. 1, No. 2. The contributing editors are Michael C. Loulakis and Owen J. Shean, shareholders in the Washington D.C. area law firm of Wickwire Gavin, P.C. They can be reached by phone at (703) 790-8750, or by fax at (703) 448-1801.
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