Beyond Employment Related Practices: Are You Covered?
Issue #13
July 2, 2007
Employment-related lawsuits are a growing concern for employers of all sizes. In 2004, the EEOC reported 79,432 charges filed for harassment, and harassment charge receipts filed and resolved were $251.7 million. According to the Watson Wyatt Company, win or lose, the average cost of legal fees and related defense costs for the average liability claim are approximately $114,000 (not including settlement amounts).
As costs for litigation and damage awards climb, experts predict that employment liability will only become more complex. As a result, it is critical for employers to understand their exposures and options to manage the risk.
The three most common employment-related lawsuits today are:
- 1. Wrongful termination - the discharge of an employee for invalid reasons
- 2. Discrimination - the denial of equal treatment of workers who are members of a protected class
- 3. Sexual Harassment - when a worker is subject to unwelcome sexual advances, obscene or offensive remarks, or the failure to stop such behavior
Employment Practices Liability (EPL) insurance is a useful risk management tool to defend against theses types of suits, or pay a claim.
What about non-employees?
The Americans with Disabilities Act (ADA) is a serious concern for employers. The ADA goes beyond employment related issues and extends to third parties who allege discrimination, such as access to the employer’s place of business. Without extending coverage to include third parties, your EPL insurance may not respond to ADA lawsuits by, for example, a customer who complains that your facility is inaccessible to persons in wheelchairs. By adding this inexpensive endorsement, you can be afforded protection for defense costs and any awards. The cost of retrofitting your facility, however, is not covered.
Guest Column
Avoiding the ADA Claim
by Mark Lopez
The are many risks in owning and operating a business. A large exposure is often overlooked. That is the obligation to maintain business facilities to current disabled access standards. In the past few years, we have all read many articles about lawsuits being filed on wineries, shopping centers, theatres, and offices. A growing number these complaints are being filed by individuals who are being termed as “Professional Plaintiffs”. Some of these litigants are known to have investigators surveying properties and looking for accessibility deficiencies. Sometimes a simple “drive by” is all that is required to identify a target.
The local building department enforces the California Building Code (CBC). All new buildings must fully comply with the code including the numerous provisions for disabled access. When one submits drawings for a building permit for an addition or remodel to an existing building, the state’s requirements for disabled access are triggered. Not only does the project area need to be code compliant, other parts of the site and building need to be made accessible. This includes but is not limited to paths-of-travel to the remodeled area, the main entrance, and restrooms and drinking fountains that serve the remodeled area. There are some exceptions for financial hardship and technical unfeasibility.
The Americans with Disabilities Act (ADA) of 1990 is not a building code; it is a discrimination law. It requires the removal of architectural barriers to the extent that they are readily achievable in all existing buildings of public accommodation. This applies to state and local government owned and private properties. The barriers are generally any aspects of a site or building that is not compliant to the current requirements. This law applies whether or not one is remodeling or adding an addition.
The ADA is generally enforced by the Attorney General’s office via a complaint filed by an individual who was denied compliant access to a place of public accommodation. The local Building Department does not enforce the ADA. Although the CBC’s requirements generally mirror the ADA’s, there are some variations. When the applicable regulations differ, the Owner has to implement the stricter standard.
The costs for non-compliance can be very expensive. A fine of $50,000.00 can be assessed for a first offense and $100,000.00 for a second offense. This cost is in addition to a court order to bring your facility up to current standards, legal fees and the negative publicity. Many business have closed as a result of an ADA lawsuit
There are many areas of existing sites and buildings, which are governed by disabled access standards. Some of the more prevalent areas where there are non-compliant conditions include:
- Lack of a compliant path of travel from an adjacent
- public sidewalk or bustop
- Non-compliant accessible parking spaces
- Inaccessible entrance(s)
- Non-compliant restrooms
- Service counters too high
- Non-compliant stairs, ramps, and railings
- Seating for observing performances or events
The process to address these concerns is as follows:
- Hiring an experienced Architect or Access Consultant
- Perform a comprehensive survey of the site and building(s)
- Prepare an Access Report, which notes the access deficiencies and general solutions
- Prepare a preliminary cost estimate to achieve compliance
- Prepare a Transition Plan (if necessary)
- Prepare drawings and specifications detailing the work to be accomplished
- Obtain bids from qualified Contractors
- Obtain building permits
- Implement the construction for the removal of barriers
At first glance, this list of tasks may seem complex and burdensome. However, taken one step at a time; not only is the process pretty straightforward, but has to weighed against the piece of mind that one gets when greatly limiting the possibility of a complaint.
Benjamin Franklin once said, “An ounce of prevention is worth a pound of cure”. I wonder if he knew then about the impending issues that future legislation like the Americans with Disabilities Act would generate?
Further inquiry can be addressed to:
Mark Lopez AIA LEED AP
Architectural Network Inc.
Sawyer Tannery
68 Coombs, Suite C-2
Napa, CA 94559
707-253-2600 Ext.: 201
ml@architecturalnetwork.com