Newsletter

 PUBLIC ACCOMMODATIONS UNDER THE ADA: AWARENESS AND COMPLIANCE

 

The American With Disabilities Act of 1990 (� the ADA�) is a sweeping Federal civil rights law prohibiting discrimination of an individual or class of individuals on the basis of a disability. Discrimination of persons with disabilities is prohibited in employment under Title I of the ADA, in services and programs of state and local governments under Title II of the ADA, and in public accommodations under Title III of the ADA. This article is limited to an overview of the requirements of Title III which requires private businesses to make their place of public accommodation equally accessible to disabled persons as non-disabled persons.

It is rather surprising that after a decade of the ADA being in effect how many businesses are being sued for not complying with the requirements of the ADA. Hundreds of cases across the country are brought for violations of Title III of the ADA. Recent high profile cases include professional golfer Casey Martin suing the Professional Golfers� Association (PGA) for failing to make reasonable accommodations to allow him to use a golfcart during PGA golfing tournaments; a suit against 54 Wendy�s Restaurants in Tennessee, Mississippi, Arkansas and Missouri to enforce barrier removal requirements; and a suit against the television show �Who Wants to Be a Millionaire� alleging that the contestant selection process which exclusively uses touch-tone telephones effectively screens out individuals with hearing and upper-body mobility impairments. Big and small businesses alike cannot escape the broad and complex requirements of Title III.

Who must comply with Title III?

A private business, whether for profit or non-profit, whose operation affects commerce, which owns, leases ,leases to or operates a place of public accommodation and which falls within at least one of twelve defined categories must comply with Title III. Places of accommodation are defined as follows: (1) places of lodging; (2) establishments serving food or drink; (3) places of exhibition or entertainment; (4) places of public; (5) sales or rental establishments; (6) service establishments; (7) public transportation terminals, depots, or stations; (8) places of public display or collection; (9) places of recreation; (10) places of education; (11) social service center; and (12) places of exercise or recreation. The twelve categories are an exhaustive list. If a private facility does not fall within one of the twelve categories, it is not considered a place of public accommodation. Both landlords and tenants of a place of public accommodation have full responsibility to the disabled individuals for complying with Title III, regardless of any lease agreement allocating responsibility between them.

 

What is a disability?

Title III protects three categories of individuals with disabilities: individuals who (1) have a physical or mental impairment that substantially limits one or more major life activities; (2) have a record of a physical or mental impairment that substantially limited one or more of the individual�s major life activities; and (3) are regarded as having such an impairment, whether they have the impairment or not. Some disabilities are obvious such as a person who is blind or in a wheelchair. Some other disabilities are not as obvious. For example, alcoholism and drug addiction are impairments under the ADA.

Who may sue?

An individual with a disability may sue based on actual discriminatory acts or on a reasonable belief that discrimination is about to occur. An individual suit is limited to obtaining a court order to stop any discriminatory acts and/or to request compliance under the ADA. In addition, attorney�s fees may be awarded to the prevailing party.

The Department of Justice (�DOJ�) through the Attorney General may sue if the case is of general public importance or a pattern or practice of discrimination is alleged. DOJ may seek money damages and civil penalties including up to $55,000 for the first violation or $110,000 for any subsequent violation.

What are examples of non-compliance under Title III?

The ADA requires that existing places of public accommodation assess their property to determine accessibility barriers. A barrier is any physical element of a facility that impedes access by a person with a disability. Public accommodations are required to remove barriers only when it is �readily achievable� to do so.

The following are examples of modifications that may be readily achievable: installing ramps; making curb cuts insidewalks and entrances; repositioning shelves; rearranging tables, chairs, vending machines, display racks, and other furniture; repositioning telephones; getting raised markings on elevator control buttons; installing flashing alarm lights; widening doors; installing offset hinges to wide doorways; eliminating the turnstiles or providing an alternative accessible path; installing accessible door hardware; installing grab bars in toilets stalls; rearranging toilet partitions to increase maneuvering space; insulating laboratory 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.

The obligation to comply with the readily achievable barrier requirement is a continuing one. Barrier removal that initially was not readily achievable may later be required due to changed circumstances.

Businesses need to be aware of the ADA requirements, inspect their interior and exterior designs for compliance on a periodic basis, and follow up in enforcing compliance. The provisions and compliance requirements of Title III are complex and voluminous, and, therefore, it is important for businesses to seek the assistance of persons knowledgeable on ADA requirements. The DOJ offers an ADA Technical Assistance Hotline which provides technical assistance and informational materials to persons with disabilities, businesses, state and local agencies, and the general public regarding Title III provisions of the ADA. The number to call is 800-514-0301.

 

(c)2006 Palma Hooper