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.
The Department of Justice (DOJ) has a page where you can read the entire text of the ADA, including the updates made to the law in 2008. Information about Title III can be found in a DOJ publication called Americans with Disabilities Act Title III Regulations. DOJ also published an ADA Title III Technical Assistance Manual that’s a bit outdated but still a good resource.
I have linked to all of the resources referenced here in the post for this episode on the Demand Our Access website.
I couldn’t possibly cover the entirety of Title III in one episode. So, I have chosen to omit subjects like commercial facilities, construction standards, and health insurance because those topics are too technical to cover as part of an overview of Title III. If you need information about those topics, the resources mentioned in this episode have good information.
I’m not discussing service animals under Title III because I discussed it in the episode called Service Animals Under Titles II and III.
Even though I don’t like the word "impairment" the reality is it is used in the law and every publication about the law. So, it is not possible to produce a presentation about Title III that doesn’t contain lots of uses of the word "impairment" and other words many of us with disabilities don’t use.
Unlike in previous episodes, I’m not going to include specific citations to the Code of Federal Regulations. I’m leaving out those citations to try and make the material easier to follow and understand. The trade off will be that I’m not going to provide direct citations you can use to check my work and learn more than I can cover. But all of the citations to relevant sections in the Code of Federal Regulations can be accessed through the resources I have linked to in this episode. If anyone is willing, I would appreciate feedback as to whether you like this kind of information presented with or without citations.
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.
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:
- Affect commerce
- 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 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.
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.
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:
- Members exercise a high degree of control over club activities
- The member selection process is very selective
- Substantial membership fees are charged
- The entity operates as a nonprofit
- 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.
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.
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.
Relationship to Other Laws
The Rehabilitation Act of 1973
Title III is intended to provide people with disabilities at least as much protection as has been provided by Title V of the Rehabilitation Act, including section 504. Section 504 covers programs of the federal government and entities receiving federal money.
Other State and Federal Laws
Title III does not disturb any federal or state law providing greater legal protection than does Title III. It does prevail over any conflicting state laws.
Individuals with Disabilities
Title III protects three categories of individuals with disabilities:
- Individuals who have a physical or mental impairment that substantially limits one or more major life activities
- Individuals who have a record of a physical or mental impairment that substantially limited one or more of the individual’s major life activities
- Individuals who are regarded as having such an impairment, whether they have the impairment or not
Physical or Mental Impairment
Physical disabilities include:
- Physiological disorders
- Cosmetic disfigurement
- Anatomical loss affecting one or more critical body systems
Mental disabilities include mental or psychological disorders, such as, organic brain syndrome, emotional or mental illness, and specific learning disabilities.
I’m not going to list any of the qualifying disabilities listed in the law because the ADA Amendments Act. of 2008 requires broad coverage.
Substantial Limitation of a Major Life Activity
An impairment substantially interferes with the accomplishment of a major life activity when the individual’s important life activities are restricted as to the conditions, manner, or duration under which they can be performed in comparison to most people.
Temporary impairments are covered as long as the impairment substantially limits a major life activity. The issue of whether a temporary impairment is significant enough to be a disability must be resolved on a case-by-case basis, taking into consideration both the duration (or expected duration) of the impairment and the extent to which it actually limits a major life activity of the affected individual.
Whether a person has a disability does not depend on their ability to limit the ways their condition substantially limits a major life activity. A person with severe hearing loss is considered disabled even though their hearing can be greatly improved through the use of a hearing aid.
Record of a Substantial Impairment
A record of a Physical or Mental Impairment That Substantially Limited One or More Major Life Activity
This protected group includes:
- A person who has a history of an impairment that substantially limited a major life activity but who has recovered from the impairment
- People who have been misclassified as having an impairment
Regarded as Disabled
The ADA protects certain people when they are regarded as having a disability that substantially limits one or more major life activity when they do not. Typically, this happens under one of the following three situations:
- An individual who has a physical or mental impairment that does not substantially limit major life activities, but who is treated as if the impairment does substantially limit a major life activity
- An individual who has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward the impairment
- An individual who has no impairments but who is treated by a public accommodation as having an impairment