Business and the ADA: Questions & Answers
- Q. Are any entities exempt from ADA's Title III requirements?
The following entities are EXEMPT from obligations under Title III of the ADA:
Religious entities are exempt from the requirements of Title III of the ADA
A religious entity is a religious organization or an entity controlled by a religious organization, including a place of worship.
Private clubs are exempt from the requirements of Title III of the ADA
The obligations of Title III do not apply to any "private club." An entity is a private club for purposes of the ADA if it is a private club under title II of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, and national origin by public accommodations.
How to identify a "private club":
- Members exercise a high degree of control over club operations.
- The membership selection process is highly selective.
- Substantial membership fees are charged.
- The entity is operated on a nonprofit basis.
- The club was not founded specifically to avoid compliance with Federal civil rights laws.
American Indian Tribes have some exemption but Title III is questionable.
Title I of the ADA which deals with employment does specifically exclude an "Indian Tribe" from the definition of an employer.
Title III requires places of public accommodations to be accessible to people with disabilities. There is no mention of applicability to "Indian Tribes." However, one federal appellate court has ruled that Title III can apply to public accommodations run by Indian Tribes. If there is a pattern of discrimination or the discrimination raises an issue of general public importance, Title III allows the Attorney General to bring a civil lawsuit to compel a tribe's compliance with the ADA.
Therefore, tribal-owned businesses should seriously consider complying with Title III or risk facing various penalties brought by the United States.
- Q. Will the ADA have any effect on the eligibility criteria used by public accommodations to determine who may receive services?
- A. Yes. If a criterion screens out or tends to screen out individuals with disabilities, it may only be used if necessary for the provision of the services. For instance, it would be a violation for a retail store to have a rule excluding all deaf persons from entering the premises, or for a movie theater to exclude all individuals with cerebral palsy. More subtle forms of discrimination are also prohibited. For example, requiring presentation of a driver's license as the sole acceptable means of identification for purposes of paying by check could constitute discrimination against individuals with vision impairments. This would be true if such individuals are ineligible to receive licenses and the use of an alternative means of identification is feasible.
- Q. Does the ADA allow public accommodations to take safety factors into consideration in providing services to individuals with disabilities?
- A. The ADA expressly provides that a public accommodation may exclude an individual, if that individual poses a direct threat to the health or safety of others that cannot be mitigated by appropriate modifications in the public accommodation's policies or procedures, or by the provision of auxiliary aids. A public accommodation will be permitted to establish objective safety criteria for the operation of its business; however, any safety standard must be based on objective requirements rather than stereotypes or generalizations about the ability of persons with disabilities to participate in an activity.
- Q. Are there any limits on the kinds of modifications in policies, practices, and procedures required by the ADA?
- A. Yes. The ADA does not require modifications that would fundamentally alter the nature of the services provided by the public accommodation. For example, it would not be discriminatory for a physician specialist who treats only burn patients to refer a deaf individual to another physician for treatment of a broken limb or respiratory ailment. To require a physician to accept patients outside of his or her specialty would fundamentally alter the nature of the medical practice.
- Q. What kinds of auxiliary aids and services are required by the ADA to ensure effective communication with individuals with hearing or vision impairments?
- A. Appropriate auxiliary aids and services may include services and devices such as qualified interpreters, assistive listening devices, note takers, and written materials for individuals with hearing impairments; and qualified readers, taped texts, and Brailled or large print materials for individuals with vision impairments.
- Q. Are there any limitations on the ADA's auxiliary aids requirements?
- A. Yes. The ADA does not require the provision of any auxiliary aid that would result in an undue burden or in a fundamental alteration in the nature of the goods or services provided by a public accommodation. However, the public accommodation is not relieved from the duty to furnish an alternative auxiliary aid, if available, that would not result in a fundamental alteration or undue burden. Both of these limitations are derived from existing regulations and case law under section 504 of the Rehabilitation Act and are to be determined on a case-by-case basis.
- Q. Will restaurants be required to have brailled menus?
- A. No, not if waiters or other employees are made available to read the menu to a blind customer.
- Q. Will a clothing store be required to have brailled price tags?
- A. No, not if sales personnel could provide price information orally upon request.
- Q. Will a bookstore be required to maintain a sign language interpreter on its staff in order to communicate with deaf customers?
- A. No, not if employees communicate by pen and notepad when necessary.
- Q. Are there any limitations on the ADA's barrier removal requirements for existing facilities?
- A. Yes. Barrier removal need be accomplished only when it is "readily achievable" to do so.
- Q. What does the term "readily achievable" mean?
- A. It means "easily accomplished and able to be carried out without much difficulty or expense."
- Q. What are examples of the types of modifications that would be readily achievable in most cases?
- A. Examples include the simple ramping of a few steps, the installation of grab bars where only routine reinforcement of the wall is required, the lowering of telephones, and similar modest adjustments.
- Q. Will businesses need to rearrange furniture and display racks?
- A. Possibly. For example, restaurants may need to rearrange tables and department stores may need to adjust their layout of racks and shelves in order to permit access to wheelchair users.
- Q. Will businesses need to install elevators?
- A. Businesses are not required to retrofit their facilities to install elevators unless such installation is readily achievable, which is unlikely in most cases.
- Q. When barrier removal is not readily achievable, what kinds of alternative steps are required by the ADA?
- A. Alternatives may include such measures as in-store assistance for removing articles from inaccessible shelves, home delivery of groceries, or coming to the door to receive or return dry cleaning.
- Q. Must alternative steps be taken without regard to cost?
- A. No, only readily achievable alternative steps must be undertaken.
- Q. How is "readily achievable" determined in a multi-site business?
- A. In determining whether an action to make a public accommodation accessible would be "readily achievable," the overall size of the parent corporation or entity is only one factor to be considered. The ADA also permits consideration of the financial resources of the particular facility or facilities involved and the administrative or fiscal relationship of the facility or facilities to the parent entity.
- Q. Who has responsibility for ADA compliance in leased places of public accommodation, the landlord or the tenant?
- A. The ADA places the legal obligation to remove barriers or provide auxiliary aids and services on both the landlord and the tenant. The landlord and the tenant may decide by lease who will actually make the changes and provide the aids and services, but both remain legally responsible.
- Q. What does the ADA require in new construction?
- A. The ADA requires that all new construction of places of public accommodation, as well as of "commercial facilities" such as office buildings, be accessible. Elevators are generally not required in facilities under three stories or with fewer than 3,000 square feet per floor, unless the building is a shopping center or mall; the professional office of a health care provider; a terminal, depot, or other public transit station; or an airport passenger terminal.
- Q. Is it expensive to make all newly constructed places of public accommodation and commercial facilities accessible?
- A. The cost of incorporating accessibility features in new construction is less than one percent of construction costs. This is a small price in relation to the economic benefits to be derived from full accessibility in the future, such as increased employment and consumer spending and decreased welfare dependency.
- Q. Must every feature of a new facility be accessible?
- A. No, only a specified number of elements such as parking spaces and drinking fountains must be made accessible in order for a facility to be "readily accessible." Certain non-occupiable spaces such as elevator pits, elevator penthouses, and piping or equipment catwalks need not be accessible.
- Q. What are the ADA requirements for altering facilities?
- A. All alterations that could affect the usability of a facility must be made in an accessible manner to the maximum extent feasible. For example, if during renovations a doorway is being relocated, the new doorway must be wide enough to meet the new construction standard for accessibility. When alterations are made to a primary function area, such as the lobby of a bank or the dining area of a cafeteria, an accessible path of travel to the altered area must also be provided. The bathrooms, telephones, and drinking fountains serving that area must also be made accessible. These additional accessibility alterations are only required to the extent that the added accessibility costs do not exceed 20% of the cost of the original alteration. Elevators are generally not required in facilities under three stories or with fewer than 3,000 square feet per floor, unless the building is a shopping center or mall; the professional office of a health care provider; a terminal, depot, or other public transit station; or an airport passenger terminal.
- Q. Does the ADA permit an individual with a disability to sue a business when that individual believes that discrimination is about to occur, or must the individual wait for the discrimination to occur?
- A. The ADA public accommodations provisions permit an individual to allege discrimination based on a reasonable belief that discrimination is about to occur. This provision, for example, allows a person who uses a wheelchair to challenge the planned construction of a new place of public accommodation, such as a shopping mall, that would not be accessible to individuals who use wheelchairs. The resolution of such challenges prior to the construction of an inaccessible facility would enable any necessary remedial measures to be incorporated in the building at the planning stage, when such changes would be relatively inexpensive.
- Q. How does the ADA affect existing State and local building codes?
- A. Existing codes remain in effect. The ADA allows the Attorney General to certify that a State law, local building code, or similar ordinance that establishes accessibility requirements meets or exceeds the minimum accessibility requirements for public accommodations and commercial facilities. Any State or local government may apply for certification of its code or ordinance. The Attorney General can certify a code or ordinance only after prior notice and a public hearing at which interested people, including individuals with disabilities, are provided an opportunity to testify against the certification.
- Q. What is the effect of certification of a State or local code or ordinance?
- A. Certification can be advantageous if an entity has constructed or altered a facility according to a certified code or ordinance. If someone later brings an enforcement proceeding against the entity, the certification is considered "rebuttable evidence" that the State law or local ordinance meets or exceeds the minimum requirements of the ADA. In other words, the entity can argue that the construction or alteration met the requirements of the ADA because it was done in compliance with the State or local code that had been certified.
- Q. When are the public accommodations provisions effective?
- A. In general, they became effective on January 26, 1992.
- Q. How will the public accommodations provisions be enforced?
- A. Private individuals may bring lawsuits in which they can obtain court orders to stop discrimination. Individuals may also file complaints with the Attorney General, who is authorized to bring lawsuits in cases of general public importance or where a "pattern or practice" of discrimination is alleged. In these cases, the Attorney General may seek monetary damages and civil penalties. Civil penalties may not exceed $55,000 for a first violation or $110,000 for any subsequent violation.