Americans with Disabilities Act Defense Work

Grumer Law > Americans with Disabilities Act Defense Work

Title III of the Americans with Disabilities Act,  (42 U.S. Code §12182 §302) states that no Individual with a disability shall be discriminated against because of his or her disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation.

What Is a Public Accommodation?

A place of public accommodation Is defined as a facility operated by a private entity that affects Interstate commerce and falls within at least one of these categories:

  • • Places of lodging, such as Inns, hotels, and motels, except establishments In which the proprietor resides and rents out no more than five rooms.
  • • Establishments serving food or drink, such as restaurants and bars.
  • • Places of exhibition or entertainment, such as theaters, auditoriums, and stadiums.
  • • Places of public gathering, such as auditoriums, convention centers, and lecture halls.
  • • Sales or rental establishments, such as grocery stores, bakeries, clothing stores, and shopping centers.
  • • Service establishments, such as dry cleaners, banks, beauty shops, hospitals, and offices of health-care professionals, and other professionals serving the public.
  • • Stations used for specified public transportation, such as terminals and depots.
  • • Places of public display, such as museums, libraries and galleries.
  • • Places of recreation, such as parks, zoos, and amusement parks.
  • • Places of education, such as nursery, elementary, secondary, undergraduate, and postgraduate private schools.
  • • Social service centers, such as day-care or senior citizen centers, adoption programs, food banks, and homeless shelters.
  • • Places of exercise or recreation, such as gymnasiums, health spas, bowling alleys, and golf courses.

Both landlords and tenants are subject to the Title III regulations and are jointly liable in any enforcement action.  They may and should allocate responsibility for compliance in their leases, however those allocations are not binding on persons or agencies seeking enforcement. Commercial facilities must also comply with the requirements for new construction and alterations. Examples of commercial facilities include factories, warehouses, office buildings, and wholesale establishments that sell exclusively to other businesses.

Private clubs and religious organizations are exempt from public accommodation requirements.

What Is Necessary to Comply?

Places of public accommodation must take certain steps to comply with the ADA. The general effective date of the provisions concerning public accommodations was January 26, 1992.

A public accommodation may not discriminate against a person with a disability by refusing service or denying participation in an activity. To achieve the goal of equal participation, services, goods, and activities must be provided In the most integrated setting possible. Individuals with disabilities cannot be required to accept separate or special services.

Pre-existing facilities

There is a widespread misconception that facilities the pre-existed the effective date of the ADA are “grandfathered in.” This is not true.  There were “grace periods” of various lengths depending on type & size of the facility in which to remove existing barriers.  Those grace periods have all expired.

Now, physical barriers in existing facilities must be removed if removal is readily achievable (i.e., can be easily accomplished and carried out without much difficulty or expense). The duty to remove barriers is an ongoing one. Changes in circumstances may make a barrier removal required where it had not previously been readily achievable.

The barrier removal process should follow these priorities to increase accessibility: (1) access to the facility; (2) access to the area in which goods and services are available; (3) access to restroom facilities; and (4) other necessary measures.

Examples of steps to remove barriers include the following actions:

  • • Providing accessible parking spaces.
  • • Installing ramps or curb cuts at entrances, widening doors, using accessible door hardware, and removing high-pile, low-density carpeting.
  • • Positioning shelves, display racks, and furniture to provide access to goods and services.
  • • Adding raised markings and braille on elevator control buttons and signage identifying interior rooms.
  • • Installing visible and audible alarms.
  • Modifying toilet stalls to increased turn space, add grab bars and sinks with accessible faucets and adequate clearance.

If a barrier removal is not readily achievable, altemative methods of providing the services and goods must be offered, if those methods are readily achievable. Examples of altemative methods include curb service, home delivery, or a clerk to retrieve merchandise from an inaccessible location. Public accommodations may not charge for the cost of providing an altemative method of service.

Public accommodations must provide auxiliary aids and services to ensure effective communication with individuals with disabilities, unless this would be an undue burden. Examples of auxiliary aids and services are assistive listening systems, telephones compatible with hearing aids, text type-writers, audio taped texts, braille materials and qualified readers, notetakers or interpreters.

A public accommodation is not required to provide personal devices such as wheelchairs; individually prescribed devices such as prescription glasses or hearing aids; or personal services, including assistance with eating or dressing. Nor must a public accommodation alter its inventory to include accessible goods, unless it makes special orders in its normal course of operation. For instance, bookstores need not order taped books for a person with a visual impairment unless they order material for other customers.

Modifications in policies, practices, and procedures must be made where necessary to avoid discrimination. For instance, public accommodations that do not permit animals must modify that policy to allow people with disabilities to use service animals.

New Construction

All new construction intended for first occupancy after January 26, 1993, in public accommodations and commercial facilities must be accessible. Elevators are not required in buildings under three stories or with fewer than 3,000 square feet per floor, unless the building is a shopping center, mall, professional office of a health-care provider, or a transportation terminal or depot.

Alterations in public accommodations and commercial facilities begun after January 26, 1992, must be accessible. When alterations to primary function areas are made, a path of travel to the altered area (and the bathrooms, telephones and drinking fountains serving that area) must be accessible to the extent that the added accessibility costs are not more than 20 percent of the cost of the initial alteration.

All design and construction of new facilities or alterations in existing facilities must comply with the ADA Accessibility Guidelines (ADAAG) issued by the Architectural and Transportation Barriers Compliance Board (36 CFR Part 1191). ADAAG sets out standards and scoping requirements for exterior features such as parking and signage. Standards for interior elements including building entrances, telephones, alarms, bathrooms, elevators, and doors are also described. Facilities such as restaurants, hotels, medical care, business, and transportation facilities must comply with specific standards contained in ADAAG.

After August 26, 1990, public accommodations that provide transportation services must order vehicles that are accessible to people with disabilities unless they can demonstrate that the transportation service, when viewed as a whole, is accessible. Vehicles with 16 or more seats that are used on a fixed route must be accessible.

Public accommodations that are places of assembly such as theaters or auditoriums with more than 300 seats, must provide a specified number of wheelchair seating spaces dispersed throughout the seating area.

Title III Enforcement

Individuals who encounter a violation of this section may file a complaint with the Department of Justice. DOJ will investigate and seek a resolution. Complaints and requests for investigation may be filed at U.S. Department of Justice Civil Rights Division Office on the Americans with Disabilities Act P.O. Box 66738 Washington, DC 20035-6738.

The Attorney General of the United States may also bring suit to enforce the ADA’s public accommodations provision. This will be done primarily in cases where there is a pattern or practice of discrimination. Civil penalties not to exceed $50,000 for a first violation and $100,000 for any subsequent violation may be assessed in cases brought by the Attorney General.

Individual law suits

Individuals may bring private lawsuits to obtain court orders to stop discrimination. Money damages cannot be awarded in these cases, however a prevailing plaintiff is entitled to its attorney fees and litigation expenses.

Tax Incentives

When Congress passed the ADA in 1990, it also made provisions for a tax credit to assist small businesses in complying with the new law.  See the “More ADA Information” page on this Web site for more detailes about this tax break.

Regulations and Information

The Department of Justice has published a technical assistance manual for Title III. To receive a copy of this manual (alternative formats are available) or the ADA Regulations for Title III, contact U.S. Department of Justice Civil Rights Division Office on the Americans with Disabilities Act P.O. Box 66738 , Washington, DC 20035-8738 (800) 514-0301 (voice) or (800) 514-0383 (TDD)

To receive a copy of the Americans with Disabilities Act Accessibility Guidelines (ADAAG) (alternative formats are available) or technical assistance with the guidelines, contact

Architectural and Transportation Barriers Compliance Board 1331 F Street, NW. Suite 1000 Washington, DC 20004-1111 (800) USA-ABLE (voicelTDD)

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