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.
Title III Continued
General Requirements Under Title III
Denial of Participation
Under the ADA,, a person with a disability cannot be denied service simply because they have a disability.
Equality in Participation
The ADA mandates an equal opportunity to participate in or benefit from the goods and services offered by a place of public accommodation, but does not guarantee that an individual with a disability must achieve an identical result or level of achievement as persons without disabilities. A person who uses a wheelchair cannot be denied access to an exercise class because they cannot do all of the exercises.
Separate Benefit and Integrated Setting
The major principles behind the ADA’s efforts to provide people with disabilities access to mainstream opportunities are as follows:
- Individuals with disabilities must be integrated to the maximum extent appropriate.
- Separate programs are permitted where necessary to ensure equal opportunity. A separate program must be appropriate to the particular individual.
- Individuals with disabilities cannot be excluded from the regular program, or required to accept special services or benefits.
A public accommodation may offer separate or special programs necessary to provide individuals with disabilities an equal opportunity to benefit from the programs. Such programs must, however, be specifically designed to meet the needs of the individuals with disabilities for whom they are provided.
Typically, an art museum does not allow patrons to touch exhibits. Working with a local affiliate of ACB, the art museum arranges a special tour for blind people where the touching of certain exhibits is allowed.
Right to Participate in the Regular Program
Even if a separate program is offered to people with disabilities, a public accommodation cannot deny people with disabilities the right to participate in the regular program, unless some other limitation on providing access exists.
Even if a local ACB affiliate has arranged a special tour for blind people where the touching of some exhibits will be allowed, an art museum cannot force a blind person to take the separate tour. If the blind person wishes, they must be allowed to take any tour offered by the museum.
Modifications in the Regular Program
When a public accommodation offers a special program but a person with a disability chooses to participate in the regular program, the public accommodation is likely to have to provide modifications to the regular program to enable the person with a disability to participate. The fact that a separate program is offered may be a factor in determining the extent of the obligations under the regular program, but only if the separate program is appropriate to the needs of the particular individual with a disability.
Discrimination Based on Association
A public accommodation may not discriminate against individuals or entities because of their known relationship or association with persons who have disabilities.
Retaliation or Coercion
Individuals who exercise their rights under the ADA, or assist others in exercising their rights, are protected from retaliation. The prohibition against retaliation or coercion applies broadly to any individual or entity that seeks to prevent an individual from exercising his or her rights or to retaliate against him or her for having exercised those rights.
A public accommodation may exclude an individual with a disability from participation in an activity, if that individual’s participation would result in a direct threat to the health or safety of others. The public accommodation must determine that there is a significant risk to others that cannot be eliminated or reduced to an acceptable level by reasonable modifications to the public accommodation’s policies, practices, or procedures or by the provision of appropriate auxiliary aids or services. The determination that a person poses a direct threat to the health or safety of others may not be based on generalizations or stereotypes about the effects of a particular disability; it must be based on an individual assessment that considers the particular activity and the actual abilities and disabilities of the individual.
The individual assessment must be based on reasonable judgment that relies on current medical evidence, or on the best available objective evidence, to determine –
- The nature, duration, and severity of the risk
- The probability that the potential injury will actually occur
- Whether reasonable modifications of policies, practices, or procedures will mitigate or eliminate the risk
A public accommodation may not impose eligibility criteria that either screen out or tend to screen out persons with disabilities from fully and equally enjoying any goods, services, privileges, advantages, or accommodations offered to individuals without disabilities, unless it can show that such requirements are necessary for the provision of the goods, services, privileges, advantages, or accommodations.
The owner of a parking garage has a policy preventing vans from parking inside even though the garage has the capacity to hold vans. The owner adopted the policy with no intention of keeping people with disabilities from parking in the garage. But the impact of the policy on those with disabilities who use vans to transport their mobility devices means the garage’s policy violates the ADA.
A public accommodation may impose legitimate safety requirements necessary for safe operation. However, the public accommodation must ensure that its safety requirements are based on real risks, not on speculation, stereotypes, or generalizations about individuals with disabilities.
A wilderness tour company may require people to prove a basic level of swimming ability prior to allowing them to participate in a rafting program.
The ADA prohibits unnecessary inquiries into the existence of a disability.
A public accommodation may not place a surcharge only on people with disabilities to cover the cost of accommodating them.
A public accommodation must reasonably modify its policies, practices, or procedures to avoid discrimination. If the public accommodation can demonstrate, however, that a modification would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations it provides, it is not required to make the modification.
A retail store has a policy of not taking special orders for out-of- stock merchandise unless the customer appears personally to sign the order. The store would be required to reasonably modify its procedures to allow the taking of special orders by phone from persons with disabilities who cannot visit the store.
If a store has check-out aisles, customers with disabilities must be provided an equivalent level of convenience in access to check- out facilities as customers without disabilities. To accomplish this, the store must either keep an adequate number of accessible aisles open or otherwise modify its policies and practices.
If a store’s only accessible aisle is generally reserved for those with 10 items or less, the store must modify its policy to allow a wheelchair user with an order larger than 10 items to use the only accessible check-out aisle.
Generally, public accommodations are not required to carry specialty goods for people with disabilities. for example, book stores are not generally required to offer braille books.
a public accommodation may be required to special order accessible goods at the request of a customer with a disability if: –
- It makes special orders for unstocked goods in its regular course of business
- The accessible or special goods requested can be obtained from one of its regular suppliers
Personal Services and Devices
A public accommodation is not required to provide individuals with disabilities with personal or individually prescribed devices, such as wheelchairs, prescription eyeglasses, or hearing aids, or to provide services of a personal nature, such as assistance in eating, toileting, or dressing.
The phrase "services of a personal nature" is not to be interpreted as referring to minor assistance provided to individuals with disabilities. Getting items from shelves someone with a disability can’t reach and removing the cover from someone’s straw aren’t considered personal services.
Auxiliary Aids and Services
A public accommodation is required to provide auxiliary aids and services that are necessary to ensure equal access to the goods, services, facilities, privileges, or accommodations that it offers, unless an undue burden or a fundamental alteration would result. This obligation extends only to individuals with disabilities who have physical or mental disabilities, such as vision, hearing, or speech disabilities, that substantially limit the ability to communicate.
Examples of Auxiliary Aids and Services
Auxiliary aids and services are simply aids and services that make communication for people with communication disabilities easier. Things like sign language interpreting, reading documents, and passing notes are examples of auxiliary aids and services.
In order to provide equal access, a public accommodation is required to make available appropriate auxiliary aids and services where necessary to ensure effective communication. The type of auxiliary aid or service necessary to ensure effective communication will vary in accordance with the length and complexity of the communication involved.
Public accommodations should consult with individuals with disabilities wherever possible to determine what type of auxiliary aid is needed to ensure effective communication. While consultation is strongly encouraged, the ultimate decision as to what measures to take to ensure effective communication rests in the hands of the public accommodation, provided that the method chosen results in effective communication.
For more information on effective communication under Title III, please check out the episode named Effective Communication Under Titles II and III.
Limitations and Alternatives
A public accommodation is not required to provide any auxiliary aid or service that would fundamentally alter the nature of the goods or services offered or that would result in an undue burden.
However, the fact that providing a particular auxiliary aid or service would result in a fundamental alteration or undue burden does not necessarily relieve a public accommodation from its obligation to ensure effective communication. The public accommodation must still provide an alternative auxiliary aid or service that would not result in an undue burden or fundamental alteration but that would ensure effective communication to the maximum extent possible, if one is available.
A fundamental alteration is a modification that is so significant that it alters the essential nature of the goods, services, facilities, privileges, advantages, or accommodations offered.
Undue burden is defined as "significant difficulty or expense." Among the factors to be considered in determining whether an action would result in an undue burden are the following:
- The nature and cost of the action
- The overall financial resources of the site or sites involved, the number of persons employed at the site, the effect on expenses and resources; legitimate safety requirements necessary for safe operation, including crime prevention measures, or any other impact of the action on the operation of the site
- The geographic separateness, and the administrative or fiscal relationship of the site or sites in question to any parent corporation or entity
- If applicable, the overall financial resources of any parent corporation or entity, the overall size of the parent corporation or entity with respect to the number of its employees, the number, type, and location of its facilities
- If applicable, the type of operation or operations of any parent corporation or entity, including the composition, structure, and functions of the workforce of the parent corporation or entity
Removal of Barriers
Public accommodations must remove architectural barriers and communication barriers that are structural in nature in existing facilities, when it is readily achievable to do so.
Architectural barriers are physical elements of a facility that impede access by people with disabilities. These barriers include more than obvious impediments such as steps and curbs that prevent access by people who use wheelchairs.
Communication barriers that are structural in nature are barriers that are an integral part of the physical structure of a facility. Examples include conventional signage, which generally is inaccessible to people who are blind, and audible alarm systems, which are inaccessible to people with hearing disabilities.
Readily Achievable Barrier Removal
Public accommodations are required to remove barriers only when it is "readily achievable" to do so. Readily achievable means easily accomplishable and able to be carried out without much difficulty or expense.
Alternatives to Barrier Removal
When a public accommodation can demonstrate that the removal of barriers is not readily achievable, the public accommodation must make its goods and services available through alternative methods, if such methods are readily achievable.
When goods or services are provided to an individual with a disability through alternative methods because the public accommodation’s facility is inaccessible, the public accommodation may not place a surcharge on the individual with a disability for the costs associated with the alternative.
Examinations covered by this section include examinations for admission to secondary schools, college entrance examinations, examinations for admission to trade or professional schools, and licensing examinations such as bar exams, examinations for medical licenses, or examinations for certified public accountants.
A private entity offering an examination covered by this section is responsible for selecting and administering the examination in a place and manner that ensures that the examination accurately reflects an individual’s aptitude or achievement level or other factor the examination purports to measure, rather than reflecting the individual’s impaired sensory, manual, or speaking skills (except where those skills are the factors that the examination purports to measure).
Where necessary, an examiner may be required to provide auxiliary aids or services, unless it can demonstrate that offering a particular auxiliary aid or service would fundamentally alter the examination or result in an undue burden.
Entities giving exams are also required to modify the manner under which the exam is given. When a person with a disability is given extra time to complete an exam, the exam operator has modified the typical manner in which the exam is administered.
Examinations must be administered in facilities that are accessible to individuals with disabilities or alternative accessible arrangements must be made.
The requirements for courses under this section are generally the same as those for examinations. Any course covered by this section must be modified to ensure that the place and manner in which the course is given are accessible.
Alternative arrangements for courses, like those for examinations, must provide comparable conditions to those provided to others, including similar lighting, room temperature, and the like.
The entity offering the course must ensure that the course materials it provides are available in alternate formats that individuals with disabilities can use.
An entity offering a variety of courses covered by this section may not limit the selection or choice of courses available to individuals with disabilities.
The ADA establishes two methods for enforcement:
- Private lawsuits filed because of discrimination, or the reasonable fear of discrimination
- Suits brought by DOJ, when it has reason to believe there is a pattern or practice of discrimination, or discrimination raising an issue of general public importance
Damages Under Title III
Private litigants cannot collect compensatory or punitive damages under the ADA.
Compensatory damages are intended to make up for actual financial losses. Compensatory damages include things like lost wages, medical bills, and repairs.
Punitive damages are intended to punish the defendant.
This is the end of our look at Title III basics.