ARCHITECTURAL BARRIERS UNDER THE ADAPage 1 of 5
ARCHITECTURAL BARRIERS UNDER THE ADA
There are three titles to the Americans with Disabilities Act (ADA) and each title has regulations that pertain to the removal of architectural barriers. These regulations apply to structural changes to facilities and the regulations do not apply to policies.
TitleI.Nondiscrimination on the Basis of Disability in Employment
29 C.F.R. Part 1630 is the Equal Employment Opportunity Commission (EEOC) regulations that apply to employment under Title I of the ADA, and 29 C.F.R. § 1630.2(o)(2)(i) is the regulation that applies to architectural barriers.
29 C.F.R. § 1630.2(o)(2). Reasonable accommodation may include but is not limited to:
(i) Making existing facilities used by employees readily accessible to and useable by individuals with disabilities.
The EEOC interpreted its Part 1630 regulations in its Appendix, which states:
The accommodations included on the list of reasonable accommodations are generally self explanatory. However, there are a few that require further explanation. One of these is the accommodation of making existing facilities used by employees readily accessible to, and useable by, individuals with disabilities. This accommodation includes both those areas that must be accessible for the employee to perform essential job functions, as well as non-work areas used by the employer’s employees for other purposes. For example, accessible break rooms, lunch rooms, training rooms, rest rooms, etc., may be required as reasonable accommodations.[1]
Title II. Nondiscrimination on the Basis of Disability in State and Local Government Services.
28 C.F.R. Part 35 is the Department of Justice (DOJ) regulations that apply to state and local government services under Title II of the ADA, and 29 C.F.R. § 35.150 and § 35.151 apply to architectural barriers.
28 C.F.R. § 35.150. Existing facilities
(a) General. A public entity shall operate each service, program, or activity so that the service, program, or activity, when viewed in its entirety, is readily accessible to and useable by individuals with disabilities.This paragraph does not—
(1) Necessarily require a public entity to make each of its existingfacilities accessible and useable by individuals with disabilities. (emphasis added).
28 C.F.R. § 35.151. New construction and alterations
(a) Design and construction. Each facility or part of a facility constructed by, on behalf of, or for the use of a public entity shall be designed and constructed in such manner that the facility or part of the facility is readily accessible to and useable by individuals with disabilities, if the construction was commenced after January 26, 1992. (emphasis added).
(b) Alteration. Each facility or part of a facility altered by, on behalf of, or for the use of a public entity in a manner that affects or could affect the usability of a facility or part of the facility shall, to the maximum extent feasible, be altered in such a manner that the altered portion of the facility is readily accessible to and usable by individuals with disabilities, if the construction was commenced by January 26, 1992. (emphasis added).
The DOJ interpreted its regulations in 28 C.F.R. Part 35, Appendix A, which states:
The Act provides that the concept of program access will continue to apply to facilities now in existence, because the cost of retrofitting existing facilities is often prohibitive.[2]
Structural changes in existing facilities are required only when there is no other feasible way to make the public entity’s program accessible. (It should be noted that “structural changes” include all physical changes to a facility; the term does not only refer to changes to structural features, such as removal of or alteration to a load bearing structural member).[3]
Also, the U.S. Supreme Court interpreted 28 C.F.R. § 35.150 and § 35.151 inTennessee v. Lane.[4]
The Supreme Court held that:
Congress required the States to take reasonable measures to remove architectural and other barriers to accessibility. 42 USC. § 12131(2)… As Title II’s implementing regulations make clear, the reasonable modification requirement can be satisfied in a number of ways. In the case of facilities built or altered after 1992, the regulations require compliance with specific architectural standards. 28 C.F.R. § 35.151 (2003). But in the case of older facilities, for which structural change is likely to be more difficult, a public entity can comply with Title II by adopting a variety of less costly measures, including relocating services to alternative, accessible sites and assigning aides to assist persons with disabilities in accessing services. § 35.150(b)(1). Only if these measures are ineffective in achieving accessibility is the public entity required to make reasonable structural changes.[5]
Title III. Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities
28 C.F.R. Part 36 is the DOJ regulations that apply to public accommodations and commercial facilities under the ADA, and 28 C.F.R. § 36.304, § 36.401, § 36.402, and § 36.403 apply to architectural barriers.
28 C.F.R. § 36.304. Removal of barriers
(a) General. a public entity shall remove architectural barriers in existing facilities, including communication barriers that are structural in nature, where such removal is readily achievable, i.e., easily accomplishable and able to be carried out without much difficulty or expense. (emphasis added).
(b) Examples. Examples of steps to remove barriers include, but are not limited to, the following actions—
(1) Installing ramps;
(2) Making cuts in sidewalks and entrances;
(3) Repositioning shelves;
(4) Rearranging tables, chairs, vending machines, display racks and other furniture;
(5) Repositioning telephones;
(6) Adding raised markings on elevator control buttons;
(7) Installing flashing alarm lights;
(8) Widening doors;
(9) Installing offset hinges to widen doorways;
(10) Eliminating a turnstile or providing an alternate accessible path;
(11) Installing accessible door hardware;
(12) Installing grab bars in toilet stalls;
(13) Rearranging toilet partitions to increase maneuvering space;
(14) Insulating lavatory pipes under sinks to prevent burns;
(15) Installing a raised toilet seat;
(16) Installing a full length bathroom mirror;
(17) Repositioning the paper towel rack in a bathroom;
(18) Creating designated accessible parking spaces;
(19) Installing an accessible paper cup dispenser at an existing inaccessible water fountain;
(20) Removing high pile, low density carpeting; or
(21) Installing vehicle hand controls.
28 C.F.R. § 36.401. New construction.
(a) General.(1) Except as provided in paragraphs (b) and (c) of this section, discrimination for this part includes a failure to design and construct facilities for first occupancy after January 26, 1993, that are readily accessible and usable by individuals with disabilities.
28 C.F.R. § 36.402 Alterations
(a) General. (1) Any alteration to a place of public accommodation or a commercial facility, after January 26, 1992, shall be made to assure that, to the maximum extent feasible, the altered portions of the facility are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs.
(b) Alteration. For purposes of this part, an alteration is a change to a place of public accommodation or a commercial facility that affects or could affect the usability of the building or facility or any part thereof.
(1) Alterations include, but are not limited to, remodeling, renovation, rehabilitation, reconstruction, historic restoration, changes or rearrangement in structural parts or elements, and changes or rearrangement in the plan configuration of walls and full-height partitions.
The DOJ interpreted its § 36.402 regulation in the Part 36 Appendix B as requiring that the regulation be consistent with the accessibility guidelines (ADAAG) developed by the Architectural and Transportation Barriers Compliance Board (ATBCB)[6]
28 C.F.R. § 36.403. Alterations: Path of Travel
(a) General. An alteration that affects or could affect the usability of or access to an area of a facility that contains a primary function shall be made so as to assure that, to the maximum extent feasible, the path of travel to the altered area and the restrooms, telephones, and drinking fountains serving the altered area, are readily accessible to and usable by, individuals with disabilities, including individuals who use wheelchairs, unless the cost and scope of such alterations is disproportionate to the cost of the overall alteration. (emphasis added).
(e) Path of travel. (1) A “path of travel” includes a continuous, unobstructed way of pedestrian passage by means of which the altered area may be approached, entered, and exited, and which connects the altered area with an exterior approach (including sidewalks, streets, and parking areas), an entrance to the facility, and other parts to the facility.
(2) An accessible path of travel may consist of walks and sidewalks, curb ramps and other interior and exterior pedestrian ramps, clear floor paths through lobbies, corridors, rooms, and other improved areas; parking access aisles; elevators and lifts; or a combination of these elements.
The DOJ interpreted its § 36.403 regulation in the Part 36 Appendix B as requiring the Attorney General to determine at what point the cost of providing an accessible path of travel becomes disproportionate.[7]
In conclusion
Obviously, the above cited regulations apply only to architectural barriers and retrofitting or structural changes to facilities.
However, these regulations have been misconstrued as applying to smoking policies in order to exempt smoking policies from the regulations that actually apply to policies.
For example, the U.S. Department of Transportation (DOT) cited “path of travel” as applying to second hand tobacco smoke in the Federal Register.[8] The DOT stated:
The petitions make the point that some individuals have respiratory conditions that can create significant health problems for them if they are exposed to tobacco smoke. If such an individual must, in order to get from the entrance of an airport to an aircraft, pass through areas in which he or she is exposed to smoke, he or she may suffer these health problems, require oxygen that is not immediately available, or require emergency medical treatment. Exposure to smoke, then, acts as a sufficient barrier for such individuals to use of the air travel system.[9]
We anticipate that any proposal resulting from this petition would not specify or limit the means to be used. A smoke-free path through the airport, transportation from the gate to the tarmac that does not go through a terminal in which smoke is present, an enclosed cart that took the passenger through the airport without exposure to smoke that was present, etc., might all be possibilities.[10]
Prepared by:
Billy Williams
Executive Director
GASP of Texas
The statutes and regulations cited above can be accessed at
Additional information is available at:
and also from the Northeastern University School of Law at:
DISCLAIMER: The content contained in this document has been prepared by GASP of Texas as a service to its readers. It is not intended to constitute legal advice. GASP of Texas has used reasonable efforts in collecting, preparing and providing quality information and commentary, but does not warrant or guarantee the accuracy, completeness, adequacy or currency of the information contained herein. Users of this information do so at their own risk.
[1]29 C.F.R. Part 1630, App., pages 372-373 (7-1-06 Edition).
[2]28 C.F.R. Part 35.150, App. A, page 563 (7-1-07 Edition).
[3]28 C.F.R. Part 35.150, App. A, page 564 (7-1-07 Edition).
[4] 541 U.S. 509, 124 S.Ct. 1978 (2004).
[5] 541 U.S. 531-32.
[6]28 C.F.R. Part 36, App. B, page 726 (7-1-06 Edition).
[7]28 C.F.R. Part 36, App. B, page 729 (7-1-06 Edition).
[8] Federal Register / Vol. 61, No. 213 / Friday, November 1, 1996 / Proposed Rules, 56481.
[9] Federal Register / Vol. 61, No. 213, page 56484.
[10] See note 9.