An ADA Guide – “…show me where it says that…“
From time to time people not familiar with ADA may ask this question, “show me where it says that”. The ADA is made up of “titles” or sections that address discrimination in employment, municipal or governmental facilities, and other public access facilities. Title II covers municipalities and Title III covers public accommodations and commercial facilities. The Department of Justice issues “codes of federal regulations” [CFR] whose purpose is to implement ADA.
The purpose of this is to provide our readers with information about where to find “where it says that”. This addresses public accommodations, not municipalities, but the provisions are generally the same.
The ADA begins with its General Rule in Section 302. It says no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any public accommodation by any person who owns, leases [or leases to], or operates a public accommodation.
There are subsections of 302 that answer the question, “what does it mean to discriminate?”
It shall be discriminatory to subject an individual on the basis of a disability to a denial of the opportunity of the individual to benefit from the good, services, facilities of a public accommodation 302[b][1][A][i].
It shall be discriminatory to afford an individual on the basis of a disabilitywith the opportunity to participate in or benefit from a good, service, facility, privilege, advantage, or accommodation that is not equal to that afforded to other individuals302[b][1][A][ii] or …an accommodation that is different or separate from that provided to other individuals, unless such action is necessary to provide the individual…with a service, facility, privilege, advantage, or accommodation, or other opportunity that is as effective as that provided to others.302[b][2][A][ii].
Discrimination includes a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden 302[b][2][A][iii].
Discrimination includes a failure to remove architectural barriers that are structural in nature, in existing facilities where such removal is readily achievable 302[b][2][A][iv].
Department of Justice [DOJ] codes of regulations also address these issues. Subpart A, 36.101 describes its purpose as to implement title III of the ADA which prohibits discrimination on the basis of disability by public accommodations and requires places of public accommodation and commercial facilities to be designed, constructed, and altered in compliance with the accessibility standards established by this part.
Subpart B, 36.201 and 36.202 restate section 302 of ADA.
Part 36.211[a] provides a public accommodation shall maintain in operable working condition those features of facilities and equipment that are required to be readily accessible to and usable by persons with disabilities by the Act or this part.
Part 36.303 [a] describes auxiliary aids a public accommodation shall take those steps that may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids unless the public accommodation can demonstrate that taking those steps would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations being offered or would result in an undue burden, i.e., significant difficulty or expense. Part 36.303[b][3] defines auxiliary aids as acquisition or modification of equipment or devices.
Part 36.306 describes personal devices this part does not require a public accommodation to provide its customers, clients, or participants with personal devices, such as wheelchairs individually prescribed devices or services of a personal nature a representative of DOJ, when asked in 2004 if a single rider golf car would be a personal device, responded that if the vehicle could be used by anyone other than the individual with a disability and if it was not individually prescribed, it would not be considered a personal device.
The DOJ ADA Title III Technical Assistance Manual, section III-4.3100 Auxiliary Aids provides a public accommodation is required to provide auxiliary aids 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. Section III-4.4700 Transportation barriers discusses places of recreation and their transportation systems [ if golf cars are deemed to be systems of transportation] provides a system is deemed to provide equivalent service if, when the system is viewed in its entirety, the service provided to individuals with disabilities, including those who use wheelchairs, is provided in the most integrated setting appropriate to the needs of the individual and is equivalent to the service provided other individuals.
Both the CFR’s and Title III Technical Assistance Manual address “undue burden” or “readily achievable”. Undue burden is defined as significant difficulty or expense. Among the factors to be considered is the nature and cost of the action, the overall financial resources of the site or resources of any parent corporation or entity. Undue burden is identical to undue hardship in terms of reasonably accommodating an employee under Title I. The undue burden standard requires a greater level of effort by a public accommodation in providing auxiliary aids than “readily achievable” for removing barriers in existing facilities. As in title II, undue burden must prove cost prohibitive in terms of overall resources.
The DOJ ADA Title III Technical Assistance Manual also addresses enforcement [III-8000]. The ADA established two avenues for enforcement of the requirements of title III; private suits by individuals who are being subjected to discrimination or who have reasonable grounds for believing that they are about to be subjected to discrimination, and suits by the DOJ, whenever it has reasonable cause to believe that there is a pattern or practice of discrimination, or discrimination that raises an issue of general public importance. The DOJ will investigate complaints and conduct compliance reviews of covered entities.
Any person who is being subjected to discrimination on the basis of disability in violation of title III of the Act may file a civil action for injunctive relief. At the request of the plaintiff or defendant, and if the court permits it, the DOJ can intervene in the civil action, if it determines that the case is of general public importance. Remedies available in a private suit may include a permanent or temporary injunction, restraining order, or other order, but not compensatory or punitive money damages or civil penalties the remedies may include requiring the provision of an auxiliary aid or service, modification of a policy, or provision of alternative methods of barrier removal.
The DOJ will investigate alleged violation of title III and undertake periodic reviews of compliance of covered entities. An investigation may be requested by any individual who believes that he or she has been discriminated against or that a specific class of persons has been discriminated against in violation of title III. The remedies available to DOJ are similar to private suits, and the court may assess a civil penalty against the covered entity in an amount not exceeding $50,000 for a first violation, or not exceeding $100,000 for any subsequent violation.
The prevailing party [other than the U S] in any action or administrative proceeding under the Act may recover attorney’s fees in addition to any other relief granted.
In considering the amount of civil penalty, if any, is appropriate, the court is required to give consideration to any good faith effort or attempt by the covered entity to comply with its obligations under the Act. One of the factors to be considered in evaluating good faith is whether the entity could have reasonably anticipated the need for an appropriate type of auxiliary aid needed to accommodate the unique needs of a particular individual with a disability.