|Disabilities Guidebook: Places of Public Accommodation||
Last updated: January 2006
What Is It? Title III of the ADA, 42 U.S.C. § 12182 prohibits discrimination on the basis of disability by any person or private entity who owns, leases, or operates a "place of public accommodation." A public accommodation includes almost every type of non-governmental operation which is open for business and which comes in contact with the general public.
What Is Its Purpose? To guarantee that you have the full and equal enjoyment of the goods, services, and benefits of any place of public accommodation. To place you on an equal footing, not to give you an unfair advantage.
Who Can Benefit? Any person with a disability who uses, or wants to use the goods, services, or facilities of a place of public accommodation.
Do You Have A Disability Under the ADA?
The way to determine whether you have a disability for purposes of the ADA is explained in the section of this Guidebook titled "Who Has a Disability Under the ADA?" in Chapter 1.
Your Rights Under Title III of the ADA: In General
Title III of the ADA prohibits discrimination in your "full and equal enjoyment" of the goods, services and benefits provided at any "place of public accommodation."
The term "full and equal enjoyment" means you have the right to participate the same as others and to have an equal chance to obtain the same benefits as others.
It does not mean that a public accommodation can exclude you because you cannot achieve an identical result or the same level of achievement as persons without a disability.
Example: It is illegal for an exercise class to exclude a person who uses a wheelchair because he cannot do all of the exercises that a person without a disability can do.
A "place of public accommodation" includes almost every type of operation which is open for business or which comes in contact with the general public. Specifically, it includes any commercial facility, operated by a private entity (not the government), whose operations fall within at least one of 12 different categories.
Those categories are:
1. Places of lodging.
Examples: An inn, a hotel, a motel.
2. Establishments serving food or drink.
Examples: A restaurant, a bar.
3. Places of exhibition or entertainment.
Examples: A movie house, a theater, a concert hall, a stadium.
4. Places of public gathering.
Examples: An auditorium, a convention center, a lecture hall.
5. Sales or rental establishments.
Examples: A bakery, a grocery store, a clothing store, a hardware store, a shopping center, bookstores, video rental stores, car rental places, pet stores, jewelry stores.
6. Service establishments.
Examples: A laundromat or dry cleaner; a bank, a barber shop, a travel service, a shoe repair shop, a funeral parlor, a gas station, a lawyer's or doctor's office, a pharmacy, an insurance office, a hospital.
7. Stations for public transportation.
Examples: A terminal, a depot or other station for transportation by bus or train.
Note: Title III, (42 U.S.C. § § 12181-12189; 12201-12212) does not cover airports, but it does cover places of public accommodation located within airports, such as a concession stand or gift shop. Airports run by public entities are covered by Title II of the ADA, (42 U.S.C. § § 12131-12165). If private airports do not receive federal funding, they are covered by the Air Carrier Access Act, 49 U.S.C. §41705; §40102 . See the section of this Guidebook titled "Access to Air Travel" in Chapter 15, Transportation.
8. Places of public display or collection.
Examples: A museum, a library, a gallery.
9. Places of recreation.
Examples: A park, a zoo, an amusement park.
10. Places of education.
Examples: A nursery or pre-school, an elementary, secondary, undergraduate or postgraduate private school.
11. Social service center establishments.
Examples: A day care center, a senior citizen center, a homeless shelter, a food bank, an adoption agency, substance abuse treatment centers, rape crisis centers, halfway houses.
12. Places of exercise or recreation.
Examples: A gym, a health spa, a bowling alley, a golf course.
Note: A public accommodation cannot refuse to serve you because its insurance coverage or rates are conditioned on the absence of persons with disabilities.
Private Clubs and Religious Organizations Are Not Considered Public Accommodations
Title III of the ADA does not apply t
However, either a private club or a religious organization can be considered a public accommodation subject to Title III to the extent that it rents space to a place of public accommodation.
Example: If a church rents space to a day care center, the church can be considered a public accommodation with regard to that space.
Places That Are Not Considered Commercial Facilities
Only facilities "in commerce" are covered by Title III. Certain types of facilities are not considered to be "commercial" under the ADA and therefore not covered by Title III. They include:
The Title III prohibition against discrimination in places of public accommodation applies to any person or private entity who owns, leases, or operates a place of public accommodation.
The ADA does not apply to the federal government. The prohibition against discrimination by state or local governments is covered by a different title of the ADA (Title II; § § 12131-12165). See the section in this Chapter titled "State and Local Government Services."
Title III covers the landlord who owns the building that houses the place of public accommodation. It also covers the tenant who owns or operates it. Depending on the situation, the owner, the tenant, or both may be responsible for the discrimination.
(1) If a restaurant is the tenant, (the owner is somebody else), and the restaurant discriminates by refusing to seat you, only the tenant would be responsible where the policy is imposed by the tenant and not by the landlord.
(2) Assume the restaurant refused to modify its "no-pets" rule and refused to admit a person who was blind because he had a guide dog. If he was refused entrance because the landlord requires such a rule, then both the landlord and the tenant would be responsible.
Benefits Must Not Be Separate or Different Unless It is Necessary
Generally speaking, the goods, services or benefits provided to you by a public accommodation must not be different or separate from that given to others. However, it is legal to make them different or separate when that is necessary to make the benefit as "effective" as that provided to others.
Example: It is legal to designate separate parking spaces for persons with disabilities.
The "Most Integrated Setting" Requirement (§12182)
The benefits provided by a public accommodation must be given to you in the "most integrated setting" appropriate to your needs. This means that to the greatest extent possible, the benefits provided to you should be given in the same location and in the same way as given to others.
(1) A restaurant violates the ADA if it requires you to eat in a back room.
(2) A health spa violates the ADA if it refuses you the full use of the spa because of stereotypes about your abilities.
Sometimes a public accommodation has programs or activities for the general public, and also has separate or different programs or activities intended for the benefit of persons with disabilities. You always have the opportunity to participate in the ones that are not separate or different.
(1) A place may offer special recreational programs designed for children with mobility impairments. However, it cannot exclude these children from its regular recreational services made available to children without disabilities, or require children with disabilities to attend only the special programs.
(2) A person who is blind may refuse to participate in a special museum tour that allows her to touch sculptures in an exhibit. Instead, she can choose to tour the exhibit at her own pace with museum's regular tour.
Exclusion or Denial May Not Be Based on Association
A public accommodation cannot exclude or deny equal benefits or opportunities to any person or entity just because that person or entity is known to associate with a person who has a disability. (§12182)
This means that public accommodations cannot discriminate against health care providers, employees of social service agencies, and others who provide professional services to persons with disabilities because of a professional association with them.
Examples: Discrimination by association:
(1) Where a day care center refuses admission to a child because his or her brother has the HIV virus.
(2) Terminating the lease of an independent living center because the center provides services to persons with mental impairments.
Retaliation and Coercion
It is against the law for anyone to discriminate against a person because that person has opposed any act or practice made unlawful by the ADA. (§12203). It also is illegal to discriminate because that person made a charge, testified, or participated in any way in an investigation, or proceeding under the ADA.
A law school violates the ADA rights of a law graduate with epilepsy if it fails to certify his application to the board of law examiners, as retaliation for his complaint about the law school's discriminatory policies.
It is against the law for anyone to coerce, intimidate, threaten, or interfere with any person who tries to exercise or enjoy a right protected by the ADA. It is also illegal for anyone to do those things to a person who is acting on behalf of someone else who is seeking to enforce ADA rights.
(1) It would be a violation of the ADA for a customer in a restaurant to harass or intimidate you to try to prevent you from patronizing the restaurant.
(2) It would be a violation for a public accommodation to fire an employee who appeared as a witness for a person who tried to enforce the ADA against the public accommodation.
The Direct Threat Defense
The ADA permits a public accommodation to exclude you if you pose a direct threat to the health or safety of others.
A "direct threat" is a significant risk to the health or safety of others that cannot be eliminated by changing policies, practices, or procedures or by providing auxiliary aids or services.
(1) A youth soccer association can bar a minor with a disability from competitive play, because there was a substantial risk of harm to him.
(2) A youth baseball league policy is illegal that bans coaches who use wheelchairs from the coach's box on the field. There was no significant risk that players might collide with the wheelchair, and therefore there was no direct threat.
In deciding whether someone poses a direct threat to the health or safety of others, a public accommodation must make an assessment in each case. This must be based on reasonable judgment that relies on current medical knowledge or on the best available objective evidence.
(1) A dentist cannot deny routine dental care, such as filling cavities, to an HIV-infected patient because, with proper precautions, that did not pose a "direct threat" to the dentist's health.
(2) A decision that a person poses a direct threat to the health or safety of others cannot be based on generalizations or stereotypes about the effects of a particular disability.
Legitimate Safety Requirements Are Allowed
A public accommodation can set and apply legitimate safety rules that are necessary for safe operation. This is allowed even if those rules tend to exclude certain persons with disabilities. Safety rules must be based on actual risks. They cannot be based on mere speculation, stereotypes, or generalizations about disabilities. Also, safety rules can exclude persons with disabilities only if they are applied neutrally to all clients or customers, regardless of whether they are persons with disabilities.
(1) An amusement park can set height requirements for certain rides.
(2) A recreational rafting expedition can require its participants to meet a necessary level of swimming skill.
Personal Devices and Personal Services Do Not Need to Be Provided
A public accommodation is not required to provide its customers, clients, or participants with personal devices or services of a personal nature.
A public accommodation does not have to provide wheelchairs, prescription eyeglasses or hearing aids, or services of a personal nature, such as assistance in eating, toileting, or dressing.
On the other hand, a public accommodation may need to supply you with auxiliary aids and services(see below).
Sometimes special assistance needs to be given as an alternative when the removal of physical barriers is not readily achievable. That kind of assistance should not be considered personal services, and may be required by the ADA.
Examples: A public accommodation may have to retrieve items from shelves; provide curb service; or make a home delivery.
Also, small changes in policies, practices, or procedures are not considered personal services, and may be required as a necessary accommodation.
(1) A waiter removing the cover from a customer's straw.
(2) A kitchen cutting up food into smaller pieces.
(3) A bank filling out a deposit slip.
You Cannot Be Screened Out From Participation Unless Necessary
A public accommodation cannot use eligibility criteria to screen you out from fully and equally enjoying its benefits.
Example: A store cannot require all its customers to present a driver's license as the only means of identification when paying by check. This discriminates against persons with severe vision impairments or some persons with developmental disabilities or epilepsy who are ineligible to receive a driver's license because of their disability. The store must permit other means of identification such as a state i.d. card or a credit card.
There are many situations where a public accommodation may try to use eligibility criteria to screen you out.
(1) A golf course cannot bar all persons who are deaf from playing golf.
(2) A movie theater cannot bar all persons with cerebral palsy from attending a movie.
(3) A restaurant cannot limit the seating of persons with Down's syndrome to only particular areas of a restaurant.
Exception: Criteria that screens you out can be used if the criteria is necessary to provide the benefits being offered.
Example: A day-care center had a rule requiring expulsion for children who are constantly disruptive and who are aggressive to other children. They did not violate the ADA when they applied the rule to a child who suffered from Attention Deficit/ Hyperactive Disorder.
A Surcharge Is Not Permitted
A public accommodation cannot charge you anything to cover the costs of any measures it takes on your behalf. Thus, a public accommodation cannot charge you for:
A public accommodation is allowed to ask for a deposit for the use of auxiliary aids, such as assistive listening devices. Any deposit must be reasonable and completely refundable.
It is Illegal to Make You Identify Your Disability Unnecessarily
A public accommodation cannot make you tell whether or not you have a disability, if it is not necessary.
Example: A retail store cannot require you to state on a credit application whether you have epilepsy, mental illness, or any other disability, or to ask whether you have the HIV virus.
It is Illegal to Force Unnecessary Requirements on You
The ADA prohibits policies that place burdens on you that are not placed on others, when they are not necessary.
Example: Public accommodations may not require that you be accompanied by an attendant, where you do not need an attendant.
Reasonable Changes In Policies and Procedures Are Required, When Necessary
In general, a public accommodation must make reasonable changes in its policies, practices, or procedures, when necessary to provide you with its benefits.
(1) A parking garage has a rule which bars all vans or all vans with raised roofs. It must make an exception for you if you use a wheelchair-accessible van and want to park in that garage.
(2) A department store has a policy of permitting only one person at a time in a dressing room. It will have to change that policy for a person with a developmental disability who needs help with dressing.
(3) A hotel has only one accessible room. If a person with a disability reserves that room, the hotel may need to keep it unoccupied until he arrives at the hotel.
Exception: the fundamental alteration defense. A public accommodation will not be required to make a requested change in policy that would "fundamentally alter" the nature of its benefits.
(1) A museum has a rule barring the touching of delicate works of art. It does not have to change that rule even for persons who are blind, if the touching threatens the integrity of the work.
(2) A brewery has a "no animals" policy. A person who is blind requests a change in that policy to permit his guide dog on the public brewery tour. The brewery must change the policy because a guide dog does not "fundamentally alter" the nature of the tour.
When Accessible or Special Goods Must Be Ordered
Accessible or special goods include: Brailled versions of books, books on audio cassettes, closed-captioned video tapes, special sizes or lines of clothing, and special foods to meet particular dietary needs.
Generally, a public accommodation cannot be forced to order accessible or special goods that are designed for persons with disabilities. But it does have to make special orders if it normally makes special orders on request, and if the accessible or special goods can be obtained from a supplier with whom the public accommodation usually does business.
Example: A clothing store would be required to order specially-sized clothing at the request of a person with a disability if it customarily makes special orders for clothing that it does not keep in stock, and if the clothing can be obtained from one of the store's customary suppliers.
When Referrals Are Permitted
A public accommodation may refer you to another public accommodation, if you require treatment or services outside of its area of specialization. This is allowed only if they would normally make a similar referral for a person without a disability who seeks or requires the same treatment or services as you.
Example: A doctor who specializes in burn treatment refers a deaf patient with a different kind of injury to another doctor, instead of treating him. This would not be discriminatory, unless the doctor provided such treatment to patients who did not have disabilities.
When Service Animals Must Be Allowed
In general, public accommodations must do what is necessary to accommodate "service animals." They also must make sure that persons with disabilities are not separated from their service animals. It is intended that the broadest possible access be provided to service animals in all places of public accommodation, including movie theaters, restaurants, hotels, retail stores, hospitals, and nursing homes.
A "service animal" is any guide dog, signal dog, or other animal trained to do work for the benefit of a person with a disability, including, but not limited to, guiding those with impaired vision, alerting those with impaired hearing to intruders or sounds, providing minimal protection or rescue work, pulling a wheelchair, or fetching dropped items. In rare circumstances, accommodation of service animals may not be required because a "fundamental alteration" in the nature of the benefits would result, or there would be a safety risk.
In rare circumstances, accommodation of service animals may not be required because a "fundamental allteration"in the nature of the benefits would result, or there would be a safety risk.
Example: A hospital may refuse to allow a person to bring her service dog with her while she visited her fiance in the emergency room. The hospital proved that its restriction was necessary to control infection and to avoid cross-exposure and allergic reactions.
Note: There is a federal law, 40 U.S.C. 291 (not the ADA) that allows persons who are blind to be accompanied by seeing-eye dogs or other guide dogs in any building or other property owned or controlled by the United States. Both the person and the dog have the same rights to admission to the building as any other person. The dogs cannot run free or roam, and must be in guiding harness or on leash at all times.
Accessible Check-Out Aisles and ATM Machines
A store with checkout aisles must make sure that an adequate number of accessible checkout aisles are kept open during store hours. If only one checkout aisle is accessible, and it is generally used for express service, one way of providing equivalent service is to allow persons with mobility impairments to make all their purchases at that aisle.
A bank that has automatic teller (ATM) machines must make sure that at least one is accessible to persons with disabilities. A bank complies when it provides one accessible walk-up ATM machine at a particular location, even though the walk-up ATM right next to it is not accessible, and the drive-up ATM is not accessible. However, the bank would be in violation of the law if the accessible ATM was located in a lobby that was locked during evening hours while the drive-up ATM was available to customers without disabilities during those same hours.
Seating in Assembly Areas
Assembly areas include such facilities as theaters, concert halls, auditoriums, lecture halls, and conference rooms.
Historically, persons who use wheel-chairs have been seated in the back of assembly areas separate from family members and friends. The ADA is intended to promote integration and equality in seating.
A public accommodation in assembly areas must provide the following things, if they are "readily achievable":
The idea behind removable aisle-side armrests is to benefit those persons in wheelchairs who can transfer to an existing aisle seat by taking off the armrest. In situations when a person in a wheelchair transfers to existing seating, the public accommodation must provide assistance in handling the wheelchair.
A public accommodation must locate the wheelchair seating spaces in assembly areas in the following ways:
Sometimes, removal of seats to make room for wheelchair seating spaces is not "readily achievable." In those cases, a public accommodation must provide a portable chair or other means to permit a family member or other companion to sit with an person who uses a wheelchair.
An existing public accommodation does not have to disperse wheelchair seating throughout an assembly area that has 300 or fewer seats.
Auxiliary Aids and Services
In some situations, a public accommodation must supply you with "auxiliary aids and services." See the list of types of auxiliary aids and services below.
You are entitled to auxiliary aids and services if that is necessary to make sure that you are not excluded, denied services, segregated, or otherwise treated differently than others. Appropriate auxiliary aids and services must be given where they are necessary to communicate effectively with persons with disabilities that affect hearing, vision, or speech.
"Auxiliary aids and services" can include:
(1) Qualified interpreters, note-takers, computer-aided transcription services, written materials, telephone handset amplifiers, assistive listening devices, assistive listening systems, telephones compatible with hearing aids, closed caption decoders, open and closed captioning, telecommunications devices for deaf persons (TTY's), video-text displays;
(2) Qualified readers, taped texts, audio recordings, Brailled materials, large print materials;\
(3) Acquisition or modification of equipment or devices.
The above list of auxiliary aids and services does not cover every possible or available auxiliary aid or service. There always will be new devices that will become available with emerging technology.
Example: Weight Watchers, Inc. agreed to provide sign language interpreters to all persons needing them at company- owned Weight Watchers centers. They also agreed to include the use of printed text or video closed captioning in weekly group sessions.
Text Telephone Devices for the Deaf (TTY). A public accommodation must make a TTY available, upon request, for a person with a hearing or communication disorder, whenever it offers others the chance to make outgoing telephone calls on a regular basis.
Example: A hotel or a hospital that has telephones in its lobby for the general public also must have a TTY or similar device available, on request.
Hotels also should provide a TTY or similar device at the front desk. This lets the hotel take calls from guests who use TTY's in their rooms. In this way, guests with hearing impairments can use such hotel services as making inquiries of the front desk and ordering room service.
Retail stores, doctors' offices, restaurants, or similar establishments are not required to have TTY's, if TTY users will be able to make inquiries, appointments, or reservations with such establishments through "tele-communications relay services" (TRS). Likewise, the public accommodation will be able to contact TTY users through the relay system. (See Chapter 14, Telecommunications<
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