Must workplace have handicap accessible restroom?

Question: My employer claims that our restrooms do not have to have any handicap stalls, even though I have co-workers who need that kind of accommodation. We have an older facility, but the front office has been remodeled. Is there anything I can do to help my co-workers?

Marian M. Zapata-Rossa, Quarles &

Brady: Depending on a number of characteristics of the building in which you work, including whether it was constructed prior to 1990, whether it is a commercial building, whether it is open to the public as a place of public accommodation such as a restaurant or retail store, and whether there are structural obstacles of the building that make compliance impracticable, your employer may be right that Title III of the Americans with Disabilities Act (ADA) does not require your particular building to have restroom facilities that comply with ADA guidelines.

Assuming you work in a commercial building built before 1990, your best chance of showing your employer that the ADA requires ADA-compliant restrooms in your workplace is if your workplace is also a place of public accommodation. If so, Section 12182 of Title III places an affirmative duty upon your employer to take necessary steps to ensure that any services therein – including restrooms – can be accessed and used by the disabled, unless those steps would fundamentally alter the nature of the public service or accommodation your employer offers or would result in an undue burden to your employer.

If your workplace was built before 1990 and is not a place of public accommodation, then under Section 12183, your employer could still be required to bring the restrooms into ADA-com-

pliance, but only if your employer renovates or alters the portion of the building in which the restrooms are located. Even in that case, your employer’s responsibility is to make the restrooms ADA-compliant “to the maximum extent feasible.”

Jay A. Zweig, Bryan Cave, LLP: A little education can help your employer avoid a government investigation and a lawsuit. Title I of the Americans with Disabilities Act (ADA) requires an employer to make the workplace readily accessible to and usable by people with disabilities. The exception is if the employer can prove that making the accommodation would cause an “undue hardship.”

The EEOC and the courts will be unsympathetic to an employer’s argument that making a restroom handicap accessible is too burdensome, especially where the employer just renovated the front office. Whether or not your employer is flush with cash, it must make the simple accommodation of an accessible restroom.

And if your workplace is open to the public, Title III of the ADA requires public places, like hotels, retailers, doctor’s offices and restaurants, to have handicap accessible facilities. It also requires these public businesses to make their goods and services accessible to individuals with disabilities by making reasonable modifications to their practices and providing auxiliary aids and services. The ADA allows disabled individuals to sue businesses to comply with Title III, and if the disabled person wins, the business not only has to fix the facility, but also must pay the disabled person’s costs and attorneys’ fees.

Arizona businesses have seen an overflowing number of Title III lawsuits. Several disabled “secret shoppers” target public businesses, and a small but persistent number of lawyers file the ADA lawsuits for them to change the facility and get paid. Before your employer is investigated or sued, they should get their own counsel, an ADA consultant and put this issue to rest.