Can an Illinois state agency reserve some of its accessible parking spaces only for its own employees with disabilities?
Plain-English summary
The Interagency Committee on Employees with Disabilities (ICED) and the heads of the Department of Human Rights and the Department of Human Services asked the AG a practical question. State employees with disabilities had complained that some agency parking lots provide only the bare-minimum number of accessible parking spaces required by the Illinois Accessibility Code, and that those spaces fill up on a first-come, first-served basis with both visitors and employees competing. Employees with disabilities ended up arriving early to grab a space, and they hesitated to leave for off-site meetings because they might not find an accessible space when they returned.
ICED's question was whether agencies could solve this by carving out some of the required IAC-minimum spaces for the agency's own employees with disabilities. Attorney General Lisa Madigan said no. The Illinois Vehicle Code (sections 11-1301.1 and 11-1301.3) provides that any vehicle bearing a disability license plate, decal, or device may park in any space "specifically reserved for such vehicles by the posting of an official sign." Read together with the IAC requirement that an agency provide a defined minimum number of such spaces, those provisions mean that the IAC-minimum spaces have to remain open to any vehicle with the proper credentials. They cannot be reserved for one person's exclusive use, including a state employee.
The opinion did not stop there. It also addressed the underlying ADA problem. Title I of the ADA can require a state agency to provide an assigned parking space to a particular employee with a disability as a reasonable accommodation, depending on the employee's individual needs. The AG cited EEOC guidance and First and Second Circuit decisions (Marcano-Rivera and Lyons) supporting that view. The way to honor both rules at once: if assigning a parking space to an employee with a disability would push the agency below the IAC-minimum count of generally available accessible spaces, the agency has to add more accessible spaces, beyond the minimum, to absorb the assigned space. The minimum is a floor, not a ceiling.
Currency note
This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Common questions
Q: What does the Illinois Accessibility Code actually require?
A: At the time of this opinion, subsection 400.310(c)(1) of the IAC required a sliding-scale minimum number of accessible spaces based on total off-street parking provided. For example, 1 space for lots of 1 to 25 spaces, 2 for lots of 26 to 50, up to 9 for lots of 401 to 500. For larger lots: 2 percent of the total for lots of 501 to 1,000, and 20 spaces plus one additional for each 100 over 1,000.
Q: Why can't a required accessible space be reserved for one employee?
A: Because the Illinois Vehicle Code provides that any vehicle properly displaying a disability plate or decal "may park, in addition to any other lawful place, in any parking place specifically reserved for such vehicles by the posting of an official sign." Reading that language together with the IAC's required-minimum rule, the AG concluded that the required-minimum spaces have to be available to any qualifying vehicle. Locking one of those spaces to a single employee would shrink the required public availability below the legal floor.
Q: Can the agency assign a parking space to an employee with a disability under the ADA?
A: Yes, in appropriate circumstances. The ADA's reasonable-accommodation duty under 42 U.S.C. § 12111(9)(A) extends to "making existing facilities used by employees readily accessible to and usable by individuals with disabilities." Whether assigned parking is a reasonable accommodation is a case-by-case determination, requiring an interactive process with the employee, and is subject to the undue-hardship defense in 42 U.S.C. § 12111(10). The AG cited Marcano-Rivera v. Pueblo International, Inc., 232 F.3d 245 (1st Cir. 2000), and Lyons v. Legal Aid Society, 68 F.3d 1512 (2d Cir. 1995), as appellate decisions supporting that proposition.
Q: How does the agency satisfy both the IAC and the ADA at the same time?
A: The opinion's answer was straightforward: if assigning a space to an employee as an ADA accommodation would drop the agency below the IAC minimum count of generally available accessible spaces, the agency has to designate additional accessible spaces. The agency cannot count the assigned employee space against the IAC minimum. The minimum is a floor for general public access; the assigned spaces are extras for individual ADA accommodation.
Q: Does this opinion apply to private employers?
A: Not directly. The opinion was scoped to state agencies, which are subject to both the IAC and Title I of the ADA. Private employers in Illinois are subject to similar accessibility requirements under building codes and the ADA, but the opinion's specific holding about reserving IAC-minimum spaces for employee-only use was tied to state-agency facilities and the cross-reference between the IAC and the Vehicle Code.
Background and statutory framework
Two statutory regimes converge in this opinion. The first is the Illinois Accessibility Code (71 Ill. Adm. Code Part 400), an administrative rule under the Environmental Barriers Act that sets minimum design standards for public facilities. Subsection 400.310(c)(1) of the IAC fixes the minimum number of accessible parking spaces an agency must provide based on total parking. The IAC is design-driven: its goal is to ensure a defined level of public accessibility at every covered facility.
The second is the Illinois Vehicle Code, which governs who may use accessible parking. Section 11-1301.1 says any vehicle with a disability registration plate, decal, or device "may park, in addition to any other lawful place, in any parking place specifically reserved for such vehicles by the posting of an official sign." Section 11-1301.3 extends recognition to disability decals issued by other states and foreign jurisdictions. Read together, the Vehicle Code says that if a sign reserves a space for accessible-parking use, anyone with a qualifying decal can use it.
Layered on top is Title I of the ADA. Section 12112(a) prohibits employment discrimination against a qualified individual with a disability. Section 12111(9)(A) lists "making existing facilities used by employees readily accessible to and usable by individuals with disabilities" as an example of reasonable accommodation. EEOC rules at 29 C.F.R. § 1630.2(o) and DOJ regulations at 28 C.F.R. Part 35 fill in the details. Federal case law, including the First Circuit's Marcano-Rivera and the Second Circuit's Lyons, has repeatedly recognized that assigned parking can be a reasonable accommodation in an appropriate case.
The AG's analytical move was to treat the IAC minimum as a public-access floor that the Vehicle Code locks open to all qualifying vehicles, and to treat any ADA-driven assigned space as an additional space the agency must provide on top of that floor. The result is the no-double-counting rule the opinion announced.
Citations and references
Statutes and regulations (as cited in the opinion):
- 42 U.S.C. §§ 12101-12213
- 42 U.S.C. § 12111(2), (5), (8), (9)(A), (10)
- 42 U.S.C. § 12112(a)
- 28 C.F.R. §§ 35.104, 35.130(a), (g), 35.150, 35.151(c)
- 29 C.F.R. § 1630.2(o)(1)(iii), (3)
- 625 ILCS 5/11-1301.1, 11-1301.3
- 71 Ill. Adm. Code § 400.310(c)(1)
- U.S. Department of Justice, 2010 ADA Standards for Accessible Design, §§ 208.1, 208.2
Cases:
- Marcano-Rivera v. Pueblo International, Inc., 232 F.3d 245 (1st Cir. 2000)
- Lyons v. Legal Aid Society, 68 F.3d 1512 (2d Cir. 1995)
- DeLuna v. Burciaga, 223 Ill. 2d 49 (2006)
EEOC guidance referenced:
- U.S. Equal Employment Opportunity Commission, Reasonable Accommodations for Attorneys with Disabilities (last modified Feb. 2, 2011)
Source
- Landing page: https://illinoisattorneygeneral.gov/opinions/
- Original PDF: https://illinoisattorneygeneral.gov/dA/f5d5027144/2012%2012-003%20CIVIL%20RIGHTS%20State%20Agency%20to%20Designate%20Accessible%20Parking%20Spaces%20for%20Employee.pdf
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.
OFFICE OF THE ATTORNEY GENERAL
STATE OF ILLINOIS
Lisa Madigan
ATTORNEY GENERAL
December 28, 2012
FILE NO. 12-003
CIVIL RIGHTS:
Authority of State Agency to Designate Accessible Parking Spaces for Employee Use Only
Mr. Rocco J. Claps
Director, Department of Human Rights
Interagency Committee on Employees with Disabilities
222 South College, Room 101A
Springfield, Illinois 62704
Ms. Michelle R.B. Saddler
Secretary, Department of Human Services
Springfield, Illinois 62704
Dear Mr. Claps and Ms. Saddler:
I have the Interagency Committee on Employees with Disabilities' (ICED) letter inquiring whether a State agency that provides the minimum number of accessible parking spaces required under the Illinois Accessibility Code (IAC) (71 Ill. Adm. Code Part 400 (2012), last amended at 21 Ill. Reg. 14502, effective October 24, 1997) may designate some or all of those spaces for use by employees with disabilities only. For the reasons discussed below, it is my opinion that a State agency which provides the minimum number of required accessible parking spaces may not designate any of those required accessible parking spaces for use only by employees. Such agency must ensure that those spaces are available for use by any vehicle with the plates or signs that allow parking in accessible spaces. If assigning parking spaces to employees with disabilities as a reasonable accommodation would reduce the number of generally-available accessible parking spaces below the minimum number required by law, an agency must provide additional accessible spaces to meet the minimum requirements.
BACKGROUND
State employees with disabilities have expressed concerns to ICED regarding the availability of accessible parking. Some State agencies that provide off-street parking for employees provide only the minimum number of accessible parking spaces required by the IAC. Because these spaces are available on a first-come, first-served basis for visitors as well as employees, employees with disabilities may be forced to arrive at work earlier than employees who are not disabled to obtain one of the limited number of accessible parking spaces. Employees with disabilities also may be reticent to leave work for meetings or appointments during the day due to concerns about the availability of an accessible parking space when they return. In response to these concerns, ICED asks whether it is permissible for State agencies which provide only the minimum number of accessible parking spaces required by law to designate some or all of those spaces for use only by agency employees with disabilities.
ANALYSIS
There are no Illinois judicial decisions or prior opinions of this office addressing the issue raised by your inquiry. Therefore, to respond to your request, it is appropriate to examine the relevant Illinois statutes and administrative rules, as well as the Americans with Disabilities Act of 1990 (the ADA) (42 U.S.C. §§ 12101-12213 (2006 & Supp. V 2011)), the Americans with Disabilities Act Accessibility Standards for Accessible Design (the ADA Standards) (28 C.F.R. pt. 35 (2012)), the Equal Employment Opportunity Commission's (EEOC) rules and interpretive guidance (29 C.F.R. pt. 1630 (2012)), and reported decisions from other jurisdictions. Responding to your inquiry requires a review of two separate issues. First, whether a State agency may be required to assign an accessible parking space to an employee with a disability as a reasonable accommodation. And, second, if so, whether the agency may assign to the employee one of the accessible parking spaces that it is required to provide by the IAC.
Reasonable Accommodations for State Employees with Disabilities
Under Title I of the ADA, State and local governments, as well as businesses with 15 or more employees, may not discriminate "against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. §§ 12111(2), (5), 12112(a) (2006 & Supp. V 2011). The ADA defines a "qualified individual" as "an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C § 12111(8) (2006 & Supp. V 2011). A "reasonable accommodation" may include, but is not limited to, "making existing facilities used by employees readily accessible to and usable by individuals with disabilities[.]" 42 U.S.C. § 12111(9)(A) (2006 & Supp. V 2011).
The ADA does not expressly provide that assigned parking constitutes a "reasonable accommodation" under that Act. Title I of the ADA and the EEOC rules and published guidance, however, all indicate that, in appropriate circumstances, the provision of assigned parking to an employee with a disability may be considered a reasonable accommodation if it permits the person with a disability to access his or her workplace, and off-street parking is a benefit of employment enjoyed by other employees. See 42 U.S.C. § 12111(9)(A) (2006 & Supp. V 2011); 29 C.F.R. § 1630.2(o)(1)(iii) (2012); see also 28 C.F.R. §§ 35.104, 35.130(a), (g), 35.150, 35.151(c) (2012); United States Department of Justice, 2010 ADA Standards for Accessible Design, §§ 208.1, 208.2.
Whether to provide an assigned parking space to an employee with a disability as a reasonable accommodation must be determined on a case-by-case basis. EEOC rules implementing the ADA elaborate on the types of accommodations that may be considered to be reasonable, including but not limited to "[m]odifications or adjustments that enable a covered entity's employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities." 29 C.F.R. § 1630.2(o)(1)(iii) (2012). The rule further states:
To determine the appropriate reasonable accommodation it may be necessary for the covered entity to initiate an informal, interactive process with the individual with a disability in need of the accommodation. This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations. 29 C.F.R. § 1630.2(o)(3) (2012).
EEOC guidance regarding reasonable accommodations includes an example specifically relating to assigned parking spaces:
A corporation provides parking for its employees. Parking spaces are unassigned. An attorney has severe emphysema and asks for a parking space next to the door. His disability requires constant use of a portable oxygen tank which, in turn, restricts him from walking even relatively short distances. The attorney is seeking an accommodation to use the employer-provided benefit. Therefore, the employer should reserve a parking space next to the door for use by the attorney as a reasonable accommodation, if there is no undue hardship, in order to provide him equal access to the parking benefit. U.S. Equal Employment Opportunity Commission, Reasonable Accommodations for Attorneys with Disabilities, M, ex. 21 (last modified February 2, 2011).
Although neither the Illinois courts nor the Seventh Circuit Court of Appeals have addressed the issue of providing parking spaces as a reasonable accommodation for an employee with a disability, the First and Second Circuit Courts of Appeals have interpreted the ADA as requiring employers to consider special parking arrangements for an employee with a disability as a potential reasonable accommodation, based on the employee's individual needs. See Marcano-Rivera v. Pueblo International, Inc., 232 F.3d 245, 257 (1st Cir. 2000) (court rejected defendant's argument that requiring disabled plaintiff to park in the same lot as other employees, rather than allowing her to use accessible parking spaces in front of facility, was not discriminatory); Lyons v. Legal Aid Society, 68 F.3d 1512, 1515-17 (2d Cir. 1995) (disabled plaintiff's assertion that she could not fulfill responsibilities as a staff attorney without being able to park her car adjacent to her office stated a claim on which relief could be granted under the ADA).
As this discussion demonstrates, it may be necessary for a State agency to provide an assigned parking space to an employee with a disability as a reasonable accommodation. The issue then becomes whether, in complying with the ADA by assigning a parking space to an employee with a disability, a State agency may use one of its required number of accessible spaces under the IAC.
Required Accessible Parking Spaces
The IAC sets forth the accessible parking requirements for an agency based on the overall amount of parking provided. Subsection 400.310(c)(1) of the IAC (71 Ill. Adm. Code § 400.310(c)(1) (2012)) provides:
If any parking is provided for employees or visitors, or both, the minimum number of accessible parking spaces to be provided for environmentally limited persons is as follows:
TOTAL OFF-STREET PARKING SPACES PROVIDED REQUIRED MINIMUM NUMBER OF ACCESSIBLE SPACES 1 to 25 1 26 to 50 2 51 to 75 3 76 to 100 4 101 to 150 5 151 to 200 6 201 to 300 7 301 to 400 8 401 to 500 9 501 to 1000 2% of total number Over 1000 20 plus 1 for each 100 over 1000
The Illinois Vehicle Code (625 ILCS 5/1-100 et seq. (West 2010)) contains provisions regarding which vehicles may park in accessible parking places. Section 11-1301.1 of the Illinois Vehicle Code (the Vehicle Code) (625 ILCS 5/11-1301.1 (West 2010)) provides, in pertinent part:
Any motor vehicle bearing registration plates or a special decal or device . . . as evidence that the vehicle is operated by or for a person with disabilities or disabled veteran may park, in addition to any other lawful place, in any parking place specifically reserved for such vehicles by the posting of an official sign[.] (Emphasis added.)
Section 11-1301.3 of the Vehicle Code (625 ILCS 5/11-1301.3 (West 2010)) similarly provides:
Any motor vehicle properly displaying a disability license plate or a parking decal or device containing the International symbol of access issued to persons with disabilities by any local authority, state, district, territory or foreign country shall be recognized by State and local authorities as a valid license plate or device and receive the same parking privileges as residents of this State.
Read together, the language of subsection 400.310(c)(1) of the IAC and sections 11-1301.1 and 11-1301.3 of the Vehicle Code is unambiguous. These provisions establish that an agency must designate a specific number of spaces for accessible parking and that any motor vehicle with license plates or other signage identifying it as being operated by, or for, a person with a disability, may be parked in any accessible parking place. This clear and unambiguous language must be given effect as written. DeLuna v. Burciaga, 223 Ill. 2d 49, 59 (2006). In my opinion, these provisions prohibit a State agency from assigning one of its required designated accessible parking spaces solely for one person's use, including a State employee with a disability.
Similarly, complying with the ADA by assigning a parking space to an employee with a disability does not relieve a State agency of its obligations under the IAC and the ADA Standards to provide a minimum number of accessible first-come, first-served parking spaces for other individuals with disabilities (whether those individuals are visitors or employees). See generally 28 C.F.R. §§ 35.104, 35.130(a), (g), 35.150, 35.151(c) (2012); United States Department of Justice, 2010 ADA Standards for Accessible Design, §§ 208.1, 208.2. A State agency cannot include the individually-assigned employee spaces in determining whether it has provided the minimum number of accessible parking spaces required by IAC. Accordingly, a State agency must designate a sufficient number of accessible parking spaces in addition to those assigned to employees with disabilities in order to meet the minimum accessible parking requirements established by law.
CONCLUSION
Under the Americans with Disabilities Act of 1990, a State agency may need to provide an assigned parking space to an employee with a disability as a reasonable accommodation to ensure that the employee may access the workplace and enjoy the parking benefits provided to employees without disabilities. Ultimately, whether an assigned parking space would be a reasonable accommodation requires a case-by-case analysis. But if an agency assigns a parking space to an employee with a disability as a reasonable accommodation, it cannot also count that space to meet the requirements of the Illinois Accessibility Code. The Illinois Accessibility Code mandates that agencies provide a specific number of accessible parking spaces, and the Illinois Vehicle Code, in turn, provides that those spaces must be available to any individual with an accessible parking permit. Based on these provisions, it is my opinion that the required accessible parking spaces may not be designated for employee-only use. Rather, if assigning parking spaces to employees with disabilities causes a State agency's number of accessible parking spaces to fall below the minimum required by the Illinois Accessibility Code, then the agency must designate additional, properly marked accessible parking spaces for general use by individuals with disabilities.
Very truly yours,
LISA MADIGAN
ATTORNEY GENERAL