Advocating for Our Rights Under Title III

Disclaimer

The information presented in any of the Demand Our Access podcast episodes, on the Demand Our Access website, or otherwise shared in conjunction with or through association with the Demand Our Access project is expressly not individual legal advice. Applying the law depends on the circumstances and events that comprise every situation. Since legal advice is fact-specific, nothing about the Demand Our Access project can provide an individual, a group of individuals, or any organization legal advice.

Advocating for Our Rights Under Title III

Introduction

As a refresher, Title III of the Americans with Disabilities Act (Title III) applies to businesses and nonprofits. In this episode, I will briefly recap important concepts under Title III. I will then discuss the steps I take when I need to advocate with a business or a nonprofit under Title III. I will also include a sample writing you can use when you need to advocate under Title III. Although the sample I am including will be intended to be written, if you are more comfortable talking to someone about your rights under Title III, the sample text I have included could be used as talking points for you in a discussion that takes place over the phone or in-person.

As always, I will include important links when this episode is posted to the Demand Our Access website.

If you have any questions or comments about this episode, you can feel free to reach me through the contact form at the Demand Our Access website, or you can email me at Jonathan@DemandOurAccess.com.

Recapping Title III

Since this is intended to be a vrief recap of Title III, I am going to focus on which entities are covered by Title III and provide a quick reminder about surcharges. I have made the entities covered by Title III the focus of this brief review, because you need to understand which entities are covered by Title III prior to contacting a particular entity to advocate for rights.

If you want to learn more about Title III, please check out Basics Under Title III and Basic Under Title III continued.

Coverage

General Provisions

Title III covers:

  • Places of public accommodation
  • Commercial facilities
  • Examination and courses related to applications, licensing, certification, or credentialing for secondary or postsecondary education, professional, or trade, purposes

Title III also covers private entities primarily engaged in transporting people, but those regulations are produced by the Department of Transportation and will not be discussed in this episode.

Public Accommodations

The whole range of Title III requirements apply to entities the Department of Justice calls public accommodations. In order to be considered a public accommodation an entity must be private and it must own, lease, lease to, or operate a place of public accommodation.

Defining a Place of Public Accommodation

A place of public accommodation is a facility whose operations:

  1. Affect commerce
  2. And fall within one of the following 12 categories:
    • Places of lodging (e.g., inns, hotels, motels) (except for owner-occupied establishments renting fewer than six rooms
    • Establishments serving food or drink (e.g., restaurants and bars
    • Places of exhibition or entertainment (e.g., motion picture houses, theaters, concert halls, stadiums
    • Places of public gathering (e.g., auditoriums, convention centers, lecture halls
    • Sales or rental establishments (e.g., bakeries, grocery stores, hardware stores, shopping centers
    • Service establishments (e.g., laundromats, dry-cleaners, banks, barber shops, beauty shops, travel services, shoe repair services, funeral parlors, gas stations, offices of accountants or lawyers, pharmacies, insurance offices, professional offices of health care providers, hospitals
    • Public transportation terminals, depots, or stations (not including facilities relating to air transportation
    • Places of public display or collection (e.g., museums, libraries, galleries
    • Places of recreation (e.g., parks, zoos, amusement parks
    • Places of education (e.g., nursery schools, elementary, secondary, undergraduate, or postgraduate private schools
    • Social service center establishments (e.g., day care centers, senior citizen centers, homeless shelters, food banks, adoption agencies
    • Places of exercise or recreation (e.g., gymnasiums, health spas, bowling alleys, golf courses

In order to be a place of public accommodation, a business does not need to be expressly named in the above list; rather, it needs to fall within one of the 12 categories listed above. So, a sporting goods store is a place of accommodation under the sales and rentals category even though sporting goods stores aren’t directly mentioned in the above list of places of public accommodation.

Commercial Landlords and Tenants

Both landlords and tenants are responsible for following Title III. But the law allows landlords and tenants to contractually determine their rights and responsibilities under Title III. That being said, if your rights under Title III are violated, you could, depending on the facts, sue either the landlord or the tenant and let them fight over who will pay.

Religious Institutions

Religious entities are exempt from the provisions of Title III. A religious entity under Title III is defined as "a religious organization or an entity controlled by a religious organization, including a place of worship." The exemption covers all of a religious organizations, activities whether they are religious or secular.

Examples

A religious institution runs a private school for members and nonmembers. Even though private schools are generally covered by Title III, the religious institution’s private school does not have to follow Title III.

If a religious organization rents space for someone else to run a private school, the religious institution, as a landlord, has no responsibility under Title III. But the private organization running the private school would be subject to the requirements of Title III.

If a religious institution donates space on its property to be used as a private school, neither the religious institution nor the private group using the donated space to run a private school is covered by Title III.

The examples show that the only way a private organization that is not a religious institution can be subject to Title III is if the private organization rents or leases space from the religious institution.

Private Clubs

Strictly private clubs aren’t covered by Title III. Courts typically use the following five factors when determining whether a club is private and thus exempt from the provisions of Title III:

  1. Members exercise a high degree of control over club activities
  2. The member selection process is very selective
  3. Substantial membership fees are charged
  4. The entity operates as a nonprofit
  5. The club was not founded to avoid federal civil rights laws

Facilities of a private club lose their exempt status to the extent they are made available to the public.

Example

A private country club rents to a private organization to run a day care center from its facility. The day care center accepts students whose families are members of the country club and from families who aren’t members of the country club. By allowing nonmembers of the country club to use the day care center, the private club has lost its Title III exemption for the portion of its facility used as a day care center.

State and Local Governments Under Title III

State and local governments aren’t subject to the provisions of Title III. As we saw in the episode called "Title II Basics" state and local governments are covered by Title II of the ADA. The reason I’m mentioning this in an episode about Title III is that facilities and programs can be subject to the requirements of Titles II and III.

Examples

A state’s parks department provides a restaurant in one of its parks. The state parks department contracts with a private corporation to manage the restaurant.

Even though the parks department is not directly managing the restaurant, it is required to ensure that the restaurant complies with all of the relevant provisions of Title II. The corporation managing the restaurant is required to follow the provisions of Title III.

A city owns an office building. It rents the first floor of the building as commercial space to a restaurant, news stand, and an office supply store.

The entire building, because it’s owned by a city, is subject to the requirements of Title II. This means that the city, as a landlord, is required to ensure all of the commercial activities taking place on the first floor live up to the city’s responsibilities under Title II.

A state and a private corporation enter into a joint venture to build a football stadium. The stadium is subject to the requirements of Titles II and III. To the extent that there is a difference in what is required as the stadium is constructed, the joint venture must use the requirement that would provide the most accessibility, whether the standard is found under Title II or III.

Surcharges

A public accommodation may not place a surcharge only on people with disabilities to cover the cost of accommodating them.

Advocating for Our Rights Under Title III

For those of you who listened to the episode on Advocating for Our Rights Under Title II, some of this will sound familiar. This is because to advocate for Our
rights Under Title III, we will use the same three steps we use when we advocate for our rights Under Title II. Although the steps for advocating under Titles II and III are the same, the language we will use and the rights we have are a bit different. The three steps to advocate for our rights are as follows:

  1. Decide who to contact
  2. Prepare what to say
  3. Once your request is submitted

Decide Who to Contact

Deciding who to contact when you need to request an accommodation and/or modification from a business or a nonprofit can be difficult. Since I cannot imagine all of the different scenarios you will encounter with the numerous types of organizational structures that exist, I can only provide a few general pointers for you to consider when you need to advocate with a business or nonprofit. For simplicity’s sake, I am going to write the below tips as if they only apply to businesses. But do not forget you can follow the same steps when contacting a small or large nonprofit:

  • If the business is a small local business, ask for the owner or manager. You can do this by visiting the business, calling the business, or maybe they have a website with a contact form or email address.
  • If the business is a national chain, visit their website and/or their app. Depending on their commitment to access, their website and app may both be accessible and they may have information about ADA requests.
  • If you cannot find a specific way to make an ADA request electronically, you can use generic contact forms or email addresses made available for public feedback.
  • You can always call a national chain. Usually, a phone number is relatively easy to find.
  • If there is a local store in you community, you can always visit the store and ask them for assistance. Maybe, the assistance they can provide is helping you make contact with someone in corporate headquarters who could be better able to help.
    The more expensive it will be to grant your request, the more likely it is that a larger business will be more likely to grant your request.

Prepare What you Will Say

Once you have decided who you will contact and how you will contact them, it’s time for you to decide what you will say. This applies whether you are making your request in writing, over the phone, or by visiting a store. To make this easier to understand, I’m going to walk you through an example. For our purposes, I am going to pretend I need to arrange shopping assistance at my nearest national chain grocer. I have decided to file this Title III request, because I have had a difficult time getting assistance when I go to this store and ask for shopping assistance. To avoid starting trouble, I will be contacting a fictitious national grocery chain named Bob’s Groceries (Bob’s). Looking at Bob’s website and app, which were both kind of accessible, I could not find any specific way to make a request under Title III. So, I have decided to submit my request through a contact form for people needing customer service.

My Sample Title III Request

I visit the Bob’s store at 321 Maple Rd. in Hanford, Washington. I’m writing to make a request for accommodation under Title III of the Americans with Disabilities Act (Title III). Specifically, I need to be able to get shopping assistance from a category of staffer who understands the store’s layout and can effectively understand and speak English.

I am making this Title III request because the shopping assistance I have been getting from the people paid to move the carts is insufficient. The last three times I have visited my Bob’s, I have left with the wrong amounts of items, I couldn’t get what I needed because my assistant couldn’t find them, and I have purchased food that was expired. These bad experiences have wasted my time and money, and could have resulted in me getting sick.

Please contact me to discuss my request within five business days.

In this example, I told them what store I shop at, notified them I am making a request under Title III, told them what I want from my request, and explained why I am making the request I am making. Since most of these forms have character and/or word limits, I kept my request to 149 words.

Once Your Request is Submitted

It’s hard to provide very specific advice as to how you should proceed once your request has been submitted. I wish we could assume your request will be forwarded to someone with the authority to actually address it and some degree of knowledge as to how it should be addressed. But that is not always true. It is impossible for me to go through all of the things that could happen once your request has been submitted. So, I want to share a few pointers for you to keep in mind once you start talking with a business or nonprofit about your request:

  • Never forget you have a right to be accommodated and/or to have a policy, practice, or procedure modified to enable you as a disabled person to participate.
  • Don’t forget they cannot ask intrusive questions about your disability. In almost every situation, it’s sufficient for you to let them know you are a disabled person. When you discuss the request, you will provide enough information to demonstrate your status as a disabled person.
  • Be prepared to explain, to the best of your ability, why you need the accommodation and/or modification you are requesting. This means you should be able to generally explain what is inaccessible to you and why it’s inaccessible to you.
  • Be prepared to explain how the accommodation and/or modification you are requesting will create the accessibility you need to participate.
    If your request is related to their inaccessible website, remember that the Department of Justice expects the website of Title III entities to be accessible to those of us with disabilities.

Conclusion

Thank you for listening to this episode of the Demand Our Access podcast. I appreciate your support.

  • Don’t let them tell you to bring a friend to assist you. Unless it’s an emergency situation, they cannot rely on someone else assisting you.

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