Portions of this article were taken, with permission, from (1) an article by William C Goolsby and Jack Purdie of the Washington Center for Real Estate Research which appeared in the newsletter of the Washington Department of Licensing, and (2) a special report on the ADA published by the Hawaii Real Estate Research & Education Center.
Real estate licensees need to be aware of the potential impact of the Americans with
Disabilities Act (ADA) of 1990 on their real estate businesses. This far-reaching law
affects both the private and governmental sectors and requires many real estate brokers to
comply with its provisions regarding employment discrimination and accessibility for the
disabled in the workplace. Licensees also have secondary responsibilities for compliance
in connection with their roles as service providers and agents.
The following overview is not intended as a definitive interpretation of the ADA or its
expected impact, but merely as an introduction to ADA provisions that affect the real
estate industry. Real estate agents should contact their own attorneys for more detailed
information and advice as to the impact of the law on their businesses,
Brokers' Responsibilities as Employers
As of July 26, 1992, businesses with 25 or more employees were required to fully comply
with the ADA in regard to employment practices (Title 1). Businesses with 15 to 24
employees must comply with Title I by July 26, 1994, while businesses with 14 or fewer
employees are exempt from compliance with Title 1.
Employers may not practice employment discrimination against "qualified individuals
with disabilities." A qualified individual with a disability is further defined as
"an individual with a disability who meets the skill, experience, education, and
other job-related requirements of a position held or desired, and who, with or without
reasonable accommodation, can perform the essential functions of a job."
A person with a disability includes any individual who has a physical or mental impairment
that substantially limits one or more of his/her major life activities, as well as any
individual with a record of impairment or who is perceived or regarded as having a
disability. "Physical or mental impairment" is very broadly defined and can
include virtually any physiological disorder and a broad range of mental or psychological
disorders. "Major life activities" include functions such as caring for oneself,
performing manual tasks, walking, seeing, hearing, speaking, learning and working.
"Substantially limits" means unable to perform a major life activity that the
average person in the general population can perform or being significantly restricted as
to the condition, manner or duration under which an individual can perform a particular
major life activity. "Essential job functions" pertains to fundamental job
duties and not the marginal functions of a particular position.
Title I requires that employers provide "reasonable accommodation" allowing
disabled individuals equal opportunities in all aspects of employment. These
accommodations may include modifying existing facilities for ready accessibility, offering
flexible work schedules, job structuring, modifying or purchasing equipment, modifying
training materials, or providing qualified readers an d interpreters. Employers may argue
against providing for disabled workers if they can demonstrate "undue hardship"
in modifying their place of business. Although "undue hardship" must be
determined on a case-by-case basis, factors that will be considered include the nature and
cost of the accommodation, the overall financial resources of the employer, the type of
operation, and the impact of the accommodation on operations.
The Act also includes general employment criteria concerning: hiring, advancement and
discharge, compensation, training, and other terms and conditions of employment; limiting,
segregating, or classifying because of a disability; and discrimination through the use of
medical examinations. The Equal Employment Opportunity Commission (EEOC), which is charged
with administering the employment discrimination provisions of the ADA, makes distinctions
between "essential" and "non-essential" job duties. EEOC regulations
consider written job descriptions evidence of a particular job's essential functions. If
the employee is capable of performing "essential tasks," then he may not be
discriminated against. job descriptions must accurately use the ADA's definition of an
essential function to prevent the EEOC, a judge, or a jury defining what is or is not an
essential function.
The National Association of REALTORS® (NAR) has prepared an Americans With Disabilities
Act compliance kit including definitions, compliance checklists and a list of technical
resources. A copy of this kit is available to NAR members from the North Carolina
Association of REALTORS® headquarters.
Brokers' Responsibilities as Service Providers
Title III of the ADA requires most places of public accommodation and commercial
facilities to be designed, constructed or altered to comply with accessibility standards
for the disabled. Although not specifically included in the federal regulations, a real
estate brokerage office seems to clearly fall within the definition of 11 places of public
accommodation." Thus, brokers and other businesses may be accountable under the
provisions of the ADA for not providing ready accessibility to their place of business for
persons with disabilities. The building should provide alternatives to steps, narrow
doorways, undersized bathroom stalls, etc. as outlined in the Architectural and
Transportation Barrier Compliance Board (ATBCB) guidelines.
Compliance deadlines are somewhat different for public accommodation than for employment.
Brokers and other businesses with 11 to 25 employees and gross receipts of $500,000 to $1
million can be sued for discrimination under the public accommodation section (Title 111)
of ADA if they are not in compliance after July 26, 1992. Unlike Title I of the ADA, there
is no exemption for small businesses in Title III. Businesses with 10 or fewer employees
and gross annual receipts of $500,000 or less must comply with Title III of ADA by January
26, 1993.
All facilities ready for "first occupancy" after January 26, 1993, must be
accessible and useable by individuals with disabilities. Existing public accommodations
and commercial facilities must be altered to provide access to "primary
function" areas. Elevators are not required in some buildings of two or less stories
or with 3000 or less square feet.
Particularly affected are those brokerages that conduct property management activities as
part of their business. Although the ADA doesn't directly address residential property
(the Fair Housing Act and subsequent amendments cover residential property), many other
types of property owned or managed by the real estate industry is impacted, and the
property management firm is responsible for compliance. Properties impacted include office
buildings, shopping malls, restaurants, hospitals, convention centers, banks, depots,
galleries, etc.
Real estate licensees may also be considered to have a responsibility under the Law of
Agency in connection with ADA compliance when selling, buying or leasing commercial
facilities for others. Licensees should disclose any known ADA infringements to buyers,
sellers, or lessees. If suit is brought under the ADA alleging discrimination against a
disabled individual, brokers or their agents could be held partially liable for damages if
they failed to disclose known ADA infringements.
For Additional Information
Brokers may obtain additional information on the ADA from the sources listed below. It is strongly suggested, however, that every broker who owns or manages a real estate business contact his/her attorney for advice regarding compliance with the ADA.
Governor's Advocacy Council for
Persons with Disabilities:
1-800-821-6922
U.S. Equal Employment Opportunity
Commission:
1-800-669-EEOC
Office on Americans with Disabilities
Civil Rights Division
U.S. Department of Justice:
(202) 514-0301
U.S. Architectural & Transportation
Barriers Compliance Board:
(202) 653-7834Note
The North Carolina Real Estate Commission has no role in enforcing the ADA and cannot provide information on ADA applicability and compliance. Please do NOT contact our office for ADA information.