Disabilities Guidebook: Places of Public Accommodation

Disabilities Guidebook: Places of Public Accommodation

Last updated: January 2006

(Chapter 2 Section 2 from Guidebook of Laws and Programs for People with Disabilities)

The Americans With Disabilities Act (ADA) Title III

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.

I. Your Legal Rights

Your Right to Enjoyment of Goods and Services at Places 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.

What Kinds of Facilities are Places of Public Accommodation?

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

  • Private clubs, not open to the public
  • Religious organizations and places of worship

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:

  • Residential housing facilities;
  • Factories, warehouses, and office buildings that do not come into contact with the general public;
    Aircraft; and
  • Railroad locomotives, railroad freight cars, railroad cabooses, commuter or intercity passenger rail cars (including coaches, dining cars, sleeping cars, lounge cars, and food service cars).

Who Must Comply With Title III of the ADA?

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.

Examples:

(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.

General Requirements of ADA - Title III

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.

Examples:

(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.

Examples:

(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.

Example:

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.

Examples:

(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.

Examples:

(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.

Examples:

(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.

Examples:

(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.

Specific Requirements of ADA: Title III

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.

Examples:

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.

Examples:

(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.

Examples:

(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:

  • Providing auxiliary aids;
  • Removing barriers;
  • Providing alternatives to barrier removal; or
  • Making reasonable modifications in its policies, practices, or procedures.

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.

Examples:
(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.

Examples:

(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":

  • A reasonable number of wheelchair seating spaces; and
  • Seats with removable aisle-side arm rests.

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:

  • They must be dispersed throughout the seating area, not just in the back;
  • They must provide lines of sight and a choice of admission prices comparable to those for the general public;
  • They must be next to an accessible route that can be used to get out in case of emergency; and
  • They must permit persons who use wheelchairs to sit with family members or other companions.

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).

TV and film captioning. Certain public accommodations that provide televisions also must provide, upon request, a means for decoding captions for persons with impaired hearing. They are:

  • Places of lodging that provide televisions in five or more guest rooms;
  • Hospitals that provide televisions for patient use.

Note: The Television Decoder Circuitry Act requires that all new televisions with screens of 13 inches or wider have built-in decoder circuitry for displaying closed captions. This law will lessen the need for portable decoders.

Movie theaters are not required to present open-captioned films. However, other public accommodations that provide information on films, video tapes, or slide shows are required to make the information accessible to persons with hearing impairments. Captioning is one means to make the information accessible.

A public accommodation is not required to provide auxiliary aids and services where they would:

  • "Fundamentally alter" the nature of the benefit being offered, or
  • Result in an "undue burden," that is, a significant difficulty or expense.

Example: A day-care center is not required to provide necessary one-on-one care for a child with multiple disabilities, and can require a medicaid-funded personal care attendant, if providing one-on-one care would impose an undue financial burden on the center.

Alternatives to Auxiliary Aids

A public accommodation can choose an alternative to an auxiliary aid or service, if the alternative would be equally effective.

Examples
:

(1) A restaurant is not required to provide menus in Braille for patrons who are blind, if the waiters in the restaurant are available to read the menu.

(2) A bookstore is not required to make available a sign language interpreter, if effective communication can be conducted by notepad.

Removal of Existing Architectural Barriers

Architectural barriers include physical barriers of any kind. The presence of physical barriers prevents people with certain disabilities from visiting places of public accommodation.

Title III of the ADA requires a public accommodation to take steps to remove architectural barriers, where such removal is "readily achievable."

"Readily achievable" means easily accomplished and able to be carried out without much difficulty or expense.

Examples:

(1) In order to provide access to persons who use wheelchairs, restaurants may need to rearrange tables and chairs

(2) Department stores may need to re-arrange display racks and shelves.

Steps to remove barriers. A public accommodation can take the following kinds of actions to remove barriers:

  • Installing ramps;
  • Making curb cuts in sidewalks and entrances;
  • Repositioning shelves;
  • Rearranging tables, chairs, vending machines, displays, and other furniture;
  • Repositioning telephones;
  • Adding raised markings on elevator control buttons;
  • Installing flashing alarm lights;
  • Installing offset hinges to widen doorways;
  • Widening doors;
  • Eliminating a turnstile or providing an alternative accessible path;
  • Installing accessible door hardware;
  • Installing grab bars in toilet stalls;
  • Rearranging toilet partitions to increase maneuvering space;
  • Insulating lavatory pipes under sinks to prevent burns;
  • Installing a raised toilet seat;
  • Installing a full-length bathroom mirror;
  • Repositioning the paper towel dispenser in a bathroom;
  • Creating designated accessible parking spaces;
  • Installing an accessible paper cup dispenser at an existing inaccessible water fountain;
  • Removing high pile, low density carpeting; or
  • Installing vehicle hand controls.

The above list of examples is not meant to cover every possible step that can be taken to remove physical barriers.

If ramps are being installed, they should be permanent and not portable, unless a permanent ramp is not readily achievable. If a portable ramp is being installed, it should have safety features, such as nonslip surfaces, railings, anchoring and strong materials.

Sometimes a public accommodation cannot afford to remove all its physical barriers at one time. It is allowed to
remove barriers in stages, according to priorities set by law. Those priorities are:

First Priority:       Access from public sidewalks, parking or public transportation.
Second Priority:   Access to goods and services made available to the public.
Third Priority:      Access to restroom facilities.
Fourth Priority:    Removal of every other kind of physical barrier.

A public accommodation does not have to take steps to remove physical barriers when those steps are not "readily achievable."

Examples of Steps That Are Not "Readily Achievable:"

(1) Rearranging furniture, equipment or display racks is not readily achievable if it results in a significant loss of selling or service space.

(2) Removing a barrier caused by a flight of stairs would not be necessary if removal would require extensive ramping or an elevator.

(3) Barrier removal is not readily achievable if it would threaten or destroy the historic significance of a designated historic building.

Alternatives to Barrier Removal

If a public accommodation can show that the removal of a barrier is not readily achievable, it has to use "alternative methods" to make its goods, services, or benefits available to persons with disabilities.

Example: If a restaurant refuses to rearrange tables and chairs to avoid significant loss of service space, the restaurant still has to provide access to its services through alternative methods.

Examples of alternatives to barrier removal:

(1) Providing curb service or home delivery

(2) Assigning an employee to get merchandise from inaccessible shelves or racks

(3) Relocating activities to accessible locations.

Examinations and Courses

There are private entities which offer courses or conduct examinations or tests. The courses or exams may be related to any of the following:

  • Job or school applications
  • Licensing or certification
  • High school or college
  • Credentials for a profession or trade

The entity must offer the course or exam in a place and manner that is accessible to persons with disabilities.

Example
:
A certified public accountant (CPA) review course which prepares students for licensing tests to become CPA's must provide sign language interpreters or other auxiliary aids to students with hearing impairments.
An exam must reflect the person's aptitude or achievement, and not the person's impaired skills (unless the exam is intended to measure those skills).

The entity offering a course or exam must provide appropriate auxiliary aids and services for persons with impaired sensory, manual or speaking skills.

Examples:

(1) Taped examinations or texts

(2) Brailled or large print exams, answer sheets and texts or qualified readers

(3) Interpreters

(4) Transcribers

(5) Classroom equipment, such as laptop computers

The entity does not have to provide auxiliary aids or services where it would result in:

  • An undue financial or administrative burden, or
  • A fundamental alteration in the way the person's skills or knowledge are supposed to be tested.

Courses must be held in facilities that are accessible to persons with disabilities, or alternative arrangements for access must be made. Materials for the courses must be made available in alternative formats.

Courses should be modified to make sure that they are accessible.

Examples of Modifications:

(1) Changes in the length of time permitted to complete an exam;

(2) Permitting oral rather than written delivery of an assignment by a person with a visual impairment.

Construction and Alterations of Facilities

New Construction § 12183

New construction refers to a public accommodation that designs or constructs facilities for first occupancy after January 26, 1993. Such facilities must be "readily accessible to and usable by persons with disabilities." If they are not, it is discrimination under the ADA.

The term "readily accessible to and usable by persons with disabilities" means that the facility or portion of the facility can be approached, entered, and used by persons with disabilities (including those with mobility impairments) easily and conveniently.

This rule requires a high degree of convenient access. It is intended to make sure that both patrons and employees of places of public accommodation and employees of commercial facilities are able to get to, enter, and use the facility.

Newly constructed facilities must provide access to the facility from the street or parking lot, as long as the responsible entity has control over the route from these locations.

Note: The facilities of public accommodations in Illinois also are subject to the construction and design rules of the Illinois Accessibility Code. See the section in this Chapter titled "Environmental Barriers in Public Facilities and Multi-Story Housing."

Alterations To Facilities

An "alteration" is a structural change to a place of public accommodation or to a commercial facility that affects the usability of the building. This includes remodeling, renovation, reconstruction, restoration, and changes in structure or walls.

Alterations are not required by the ADA. If alterations are made after January 26, 1993, to a public accommodation or commercial facility, then the altered portions must be accessible to persons with disabilities, including persons who use wheelchairs. The entity must assure access to the maximum extent possible.

Example:
A restaurant violated the ADA when it constructed a raised dining area without installing a ramp and when it installed new booths without providing accessible seating.

Access To Path of Travel

When a public accommodation makes an alteration that affects access to an area of a facility containing a "primary function," the entity must make the "path of travel" to the altered area accessible to persons with disabilities. This includes persons who use wheelchairs.

A "primary function" area is where a major activity of the facility takes place.

Examples:

(1) The customer services lobby of a bank

(2) The dining area of a cafeteria

(3) The meeting rooms of a conference center

The "path of travel" includes all parts of the facility that you have to use to get to and from the altered area. It also includes the paths to the bathrooms, telephones, and drinking fountains serving the altered area. All such paths must be accessible whenever the alteration is to a primary function area.

The "path of travel" is the continuous path connecting the exterior and the entrance of the building to the primary function area that has been altered.

The requirement to make the path of travel accessible does not apply if the cost of doing so would be too much. Costs of making the path of travel accessible are too much where the cost is more than 20% of the cost of the alteration to the "primary function" area. When that happens, then as much of the path of travel as possible should be made accessible, without going over the 20% limit.

Elevator Requirements

New Construction: Elevators are required in all new construction unless there is an "exemption." There is an exemption in any new facility that is less than 3 stories or has less than 3,000 square feet per story.

Example:
A new office building that will have 5 stories, but where each story will have less than 3,000 square feet, does not require an elevator.

Note: The elevator requirements in the Illinois Accessibility Code are more strict.

When alterations are made: There must be elevator access to primary function areas that have been altered, unless:

  • The above exemption applies, or
  • The costs of installing the elevator would be too much when compared to the cost of the alteration to the primary function area.

Note: Alterations to the offices of a doctor or other health care provider must include an elevator, unless costs are too much. There is no exemption for offices of health care providers where the facilities are less than 3 stories or have less than 3,000 square feet per story.

A shopping center or mall with at least two levels must have an elevator even if the facilities are less than three stories or have less than 3,000 square feet per story.

II. How to Know if Your Rights Have Been Violated

Your rights have been violated if: You are a qualified individual with a disability; you use or want to use the goods, services, benefits or facilities of a "place of public accommodation"; your participation would not be a direct threat to others or to yourself, and:

  • You are excluded because you cannot achieve at the same level as others;
  • You are required to accept goods or services or benefits that are different or separate from that given to others;
  • Where a place has programs and activities for the general public, and also separate programs and activities for persons with disabilities, you are denied the opportunity to participate in the ones that are not separate;
  • Anyone tries to discriminate against you because you have opposed an act or practice that the ADA forbids, or because you have made a charge, or testified, or participated in an ADA case;
  • You are required to reveal that you have a disability, when it is not necessary to tell;
  • You have burdens placed on you because of your disability that are not placed on others;
  • You are excluded because of so-called "safety" rules that are based on speculation or stereotypes, and not on actual risk;
  • You are denied a reasonable change in the public accommodation's policies, practices, or procedures, when those changes are necessary to enjoy the goods, services, or benefits, and do not fundamentally alter them;
  • A place fails to honor your request that they make an order for special or accessible goods when it normally makes such special orders on request and when those special goods can be obtained from a supplier with whom they usually do business;
  • You are excluded because you have a service animal or you are separated from your service animal;
  • You cannot use a store because it does not have accessible check-out aisles . You do not have access to an accessible ATM machine at a bank at times when other ATM machines are available;
  • Anyone tries to coerce, intimidate, or threaten you because you tried to enjoy your rights under the ADA;
  • A public accommodation has failed to provide "alternatives to barrier removal" when barrier removal is not readily achievable;
  • A course or examination is offered to you in a place or in a manner that is not accessible, or the exam improperly reflects impaired sensory, manual or speaking skills instead of aptitude or achievement;
  • You are excluded from participation because you supposedly are a direct threat to the health or safety of others, when there is no real significant risk of harm;
  • A place has eligibility rules that screen out, or tend to screen out, persons with disabilities, unless the rules are necessary to provide the benefits being offered. You are charged money for auxiliary aids, for barrier removal, for providing alternatives to barrier removal, or for changes in policies made for your benefits;
  • An assembly area has failed to provide persons with disabilities with appropriate accommodations that promote integration and equality in seating;
  • You have a disability that affects hearing, vision or speech, and you have been denied reasonable "auxiliary aids and services" that are necessary to make sure that you are not excluded, segregated, or treated differently than others, or you have been denied an alternative to an auxiliary aid or service which would be equally effective;
  • A public accommodation has failed to take steps to remove physical barriers, when such removal is readily achievable;
  • New construction of buildings and alterations made to existing buildings are done in a way that the facility or the altered portions are not readily accessible to you or usable by you.

III. How to Protect or Enforce Your Rights

At the Department of Justice

Requests for Investigation By U.S. Department of Justice

The ADA does not have a comprehensive administrative scheme to enforce Title III of the ADA. There is no right to a hearing at a federal agency. Nevertheless, if you believe that you have been subjected to discrimination prohibited by Title III of the ADA or its regulations, you may request the Department of Justice to start an investigation.

Complaints should be sent to:

Disability Rights Section,
Civil Rights Division,
U.S. Department of Justice,
Post Office Box 66738,
Washington, DC 20035-6738.

Note: Call the ADA Information Line 1-800-514-0301 (voice) 1-800-514-0383 (TTY) to ask about filing a complaint with the DOJ and to order the DOJ publication, How to File a Title III Complaint, or visit the DOJ's Disability Rights Section Hompage.

The Assistant Attorney General for Civil Rights is responsible for investigating possible violations and for enforcing the public accommodations regulations.

U.S. Attorney General Lawsuits

Following an investigation, the Attorney General may start a lawsuit in a United States District Court, but only when there is good reason to believe that any person or group of persons:

  • Is engaged in a pattern or practice of discrimination under Title III of the ADA, or
  • Has been discriminated against under Title III, and the discrimination raises an issue of general public importance

This means the Attorney General will not file suit on your behalf for an isolated or single instance of discrimination, but may do so if it is considered an important issue for the public at large.

In a civil lawsuit brought by the Attorney General, the court may order the following types of relief:

  • An order to temporarily or permanently stop the illegal practice;
  • An order requiring the public accommodation to provide an auxiliary aid or service, or to provide an alternative method, or to change a policy, practice, or procedure;
  • An order making facilities readily accessible to and usable by persons with disabilities;
  • Other types of appropriate orders, including an award of "monetary damages" to persons discriminated against, when requested by the Attorney General. This does not include punitive damages. It does include all forms of compensatory damages, including out-of-pocket expenses and damages for pain and suffering; and
  • To satisfy the public interest, the court can assess a civil penalty against the entity in an amount not exceeding $50,000 for a first violation, and not exceeding $100,000 for any subsequent violation.

Filing Your Own Lawsuit

Private Lawsuits

Whenever your rights under Title III of the ADA have been violated or are about to be violated, you can file your own private civil lawsuit. It is not necessary to first complain to the Department of Justice or the Attorney General. Also, it is not necessary to provide notice to state or local authorities before bringing a lawsuit under Title III of the ADA. In other words, you can file your own suit as soon as you know your rights were violated or are about to be violated.
If justified, the court may appoint an attorney for you and may allow you to file the case without fees or costs.

Relief Available From Private Lawsuits

When you file your own lawsuit, the relief you can get under Title III of the ADA is limited to "preventive relief." Preventive relief means an injunction or restraining order issued by the court to prevent the place you are suing from continuing to discriminate against you. You must be able to show a likelihood that the discrimination will continue or will recur.

You cannot recover monetary damages in a private lawsuit brought under Title III of the ADA. The court could award money damages, but only if the suit was brought by the Attorney General, who recommended that relief.

There is another other way you might be able to recover money damages for any losses you suffer by the failure of the public accommodation to provide access. That is by bringing a state law claim, or by adding a state law claim to your ADA claim. See the section in this Chapter titled "Places of Public Accommodation and Government Services (State Law)."

If you win the suit, the court most likely will order the public accommodation to pay your attorney's fee. This could include litigation expenses and costs. Litigation expenses include items such as expert witness fees, travel expenses, and the like.

If you lose the suit, you will not have to pay the public accommodation's attorneys' fees unless it is found that your claim was frivolous, unreasonable, or groundless.

Deadline for Filing a Lawsuit

Any lawsuit brought under Title III of the ADA must be filed within two (2) years of the date that you were harmed by the discrimination.

Who The Lawsuit Should Be Brought Against

A person can be sued under ADA Title III only if he or she owns, leases or leases to, or operates a place of public accommodation. This means you sue the management, and not an employee who is not part of management.

IV. Where To Go For More Information

Statutes and Regulations

Title III of the ADA, and related statutory provisions, can be found at 42 USCA §§ 12101, 12102, 12181-12189, and 12201-12212.

The federal regulations prohibiting discrimination on the basis of disability by public accommodations can be found at 28 CFR Part 36.

A section-by-section analysis of the above regulations can be found at 28 CFR Part 36, Appendix B, titled "Preamble to Regulation on Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities" (Published July 26, 1991).
The federal regulations explaining the ADA Accessibility Guidelines for Buildings and Facilities can be found at 36 CFR Part 1191.

The federal law relating to seeing-eye dogs in buildings owned or operated by the United States can be found at 40 USCA §291.

Private Clubs and Religious Organizations Are Not Considered Public Accommodations

Title III of the ADA does not apply to private clubs, not open to the public, or religious organizations and places of worship. 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.

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