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Many states and localities have their own distinct accessibility laws and regulations for businesses. Often these are not analogous to the ADA. For instance, businesses operating in New York must use the disability access symbol designated by the state, but the U.S. Access Board (which sets standards of accessibility for federal agencies and drafts the ADA Accessibility Guidelines that the Department of Justice (DOJ) incorporated into its ADA Title III regulations) recently issued guidance that makes it more difficult to argue the state Accessibility Icon is an “equivalent facilitation” under the ADA.

Under New York law, usage of the “Accessible Icon” (an attempt to portray a more dynamic, active and positive figure) is mandated in new construction and alterations installed or replaced after November 22, 2014, where accessibility is required by law, not the more traditional, static figure displayed in the International Symbol of Access (ISA) in use for almost 50 years. Similar legislation recently passed in Connecticut. On the other hand, Title III of the ADA and the Architectural Barriers Act (ABA) (which applies to public accommodations facilities and federally-funded facilities), as well as other state and local laws, still mandate usage of the ISA for accessible entrances, parking spaces, and bathrooms, among other things. The conundrum for businesses subject to these conflicting laws: Display the ISA as the ADA requires? Display the Accessible Icon, as some state or local laws require? Display both? This last option, of course, is the safest course. However, downsides include possible increased costs, confusion, and perhaps unwanted aesthetics.

One possible solution: the New York business could display the Accessible Icon as required by state law, then rely on the “equivalent facilitation” language in Section 103 of the 2010 ADA Standards for Accessible Design. This provision authorizes “the use of designs, products, or technologies as alternatives to those prescribed, provided that they result in substantially equivalent or greater accessibility and usability.” If the Accessible Icon were deemed such an equivalent facilitation, its use instead of the ISA would be permissible. To date, no court or agency has ruled on this issue.

While the DOJ — the federal agency responsible for enforcing Title III of the ADA — has not issued any formal guidance, in April, the U.S. Access Board issued its own guidance (stating “the ISA must be used even where a state or local code or regulation specifies a different symbol.” (Emphasis added.) The Access Board also stated that the ISA has become a worldwide symbol “reflect[ing] considerable analysis by, and consensus of, an international collection of technical experts.” The guidance further suggests that the ISA “promotes legibility, especially for people with low vision or cognitive disabilities.” These were some of the Access Board’s rationales justifying its conclusion that businesses display the ISA where required by federal standards, even contradictory state or local requirements exist. Like the ADA Standards for Accessible Design, the Architectural Barriers Act and the U.S. of Transportation’s ADA Standards, among others, also mandate use of the ISA.

Even though the Access Board does not address directly whether the Accessible Icon is an “equivalent facilitation” and defers to the courts, it is nonetheless problematic for businesses. In a lawsuit filed under the ADA against a business that elected to display the Accessible Icon, a court might defer to the Access Board’s guidance given the agency’s expertise in this area. Moreover, the burden is on the business to prove the Accessible Icon provides equivalent facilitation.

Clarification from the courts or DOJ would be welcomed. Meanwhile, businesses should seek appropriate guidance on navigating through this quagmire and perhaps even seek a waiver from local authorities of the Accessible Icon obligation where appropriate.