The Americans With Disabilities Act of 1990 (hereinafter “the ADA”) was promulgated to eliminate discrimination against individuals with disabilities. The legislation has undeniably impacted American businesses.
The Americans With Disabilities Act of 1990 (hereinafter “the ADA”) was promulgated to eliminate discrimination against individuals with disabilities. The legislation has undeniably impacted American businesses. Many businesses are familiar with the ADA as it applies to employment discrimination against disabled individuals. However, fewer businesses are as familiar with the provisions under Section 302 of Title III of the ADA which prohibits discrimination against disabled customers and clients of businesses operated by private entities. Accordingly, the impact of Section 302 on private businesses is far reaching and important for private business owners to understand.
Section 302 – The General Rule
As a general rule, Section 302 of the ADA provides: No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public enjoyment by any person who owns, leases (or leases to), or operates a place of public accommodation.
While simplistic on its face, this rule presents a number of questions and issues that all private businesses must consider in order to ensure compliance.
What businesses are subject to the rule?
Section 302 applies to public accommodations and services operated by private entities. Some private businesses have operated under the mistaken assumption that the ADA does not apply where the business is privately owned and operated. However, Section 302 expressly applies to private entities. The term “private entity” means any entity other than a public entity. Under Section 301 of Title III of the ABA, the following private entities are considered public accommodations for purposes of Section 302 if they affect commerce:
(A) an inn, hotel, motel, or other place of lodging, except for an establishment located within a building that contains not more than five rooms for rent or hire and that is actually occupied by the proprietor of such establishment as the residence of such proprietor;
(B) a restaurant, bar, or other establishment serving food or drink;
(C) a motion picture house, theater, concert hall, stadium, or other place of exhibition or entertainment;
(D) an auditorium, convention center, lecture hall, or other place of public gathering;
(E) a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment;
(F) a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment;
(G) a terminal, depot, or other station used for specified public transportation;
(H) a museum, library, gallery, or other place of public display or collection;
(I) a park, zoo, amusement park, or other place of recreation;
(J) a nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education;
(K) a day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establishment; and
(L) a gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation.
According to Section 307, Title III does not apply to private clubs or establishments exempted from coverage under Title II of the Civil Rights Act of 1964 or to religious organizations or entities controlled by religious organizations, including places of worship.
What individuals are protected?
According to the ADA, an individual is considered “disabled” where they have a physical or mental impairment that substantially limits one or more his or her major life activities.
What types of activities are prohibited?
Where a private entity determines that it is considered a “public accommodation” for purposes of the ADA, it must then learn what activities constitute discrimination. Section 302 provides both general prohibitions and specific prohibitions against discrimination of disabled individuals. General Prohibitions:
General prohibitions under Section 302 of Title III provide that a private entity cannot deny disabled customers or clients the opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations offered by the private entity. Furthermore, a private entity cannot provide a disabled individual or class with a good, service, facility, privilege, advantage, or accommodation that is different or separate from that provided to other individuals, unless such action is necessary to provide the individual or class with a good, service, facility, privilege, advantage, or accommodation, or other opportunity that is as effective as that provided to others. Goods, services, facilities, privileges, advantages, and accommodations shall be afforded to an individual with a disability in the most integrated setting appropriate to the needs of the individual.
Notwithstanding the existence of separate or different programs or activities provided in accordance with this section, an individual with a disability should not be denied the opportunity to participate in programs or activities that are no separate or different. A private entity is prohibited from violating these general provisions directly or through contractual , licensing, or other administrative arrangements that have the effect of discriminating on the basis of disability or perpetuate the discrimination of others who are subject to common administrative control.
These general prohibitions not only protect the disabled, but also include protection for others associated with disabled individuals. It is considered discriminatory for a private entity to exclude or otherwise deny goods, services, facilities, privileges, advantages, accommodations, or other opportunities to an individual or entity because of the known disability of an individual with whom the individual or entity is known to have a relationship or association.
Section 302 imposes several specific requirements to avoid discrimination.
-A private entity cannot impose eligible criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any goods, services, facilities, privileges, advantages, or accommodations, unless such criteria can be shown to be necessary for the provision of the goods, services, facilities, privileges, advantages, or accommodations being offered;
– A private entity must make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations;
– A private entity must take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently that other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden;
– A private entity must remove architectural barriers, and communication barriers that are structural in nature, in exiting facilities, and transportation barriers in existing vehicles and rail passenger cars used by an establishment for transporting individuals (not including barrier that can only be removed through the retrofitting of vehicles or rail passenger cars by the installation of a hydraulic or other lift), where such removal is readily achievable. Where an entity can demonstrate that the removal of a barrier is not readily achievable, it should make such goods, services, facilities, privileges, advantages, or accommodations available through alternative methods if such methods are readily achievable. The term “readily achievable” means easily accomplishable and able to be carried out without much difficulty or expense. In determining whether an action is readily achievable, factors to be considered include the cost of the action needed, the overall financial resources of the entity, size of the business with respect to employees, and type of business operation.
Exception for a Direct Threat to Safety
Section 302 does not require a public accommodation to permit an individual to participate in or benefit from the goods, services, facilities, privileges, advantages and accommodations of that public accommodation when that individual poses a direct threat to the health or safety of others. Direct threat means a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures, or by the provision of auxiliary aids or services. In determining whether an individual poses a direct threat to the health or safety of others, a public accommodation must make an individualized assessment, based on reasonable judgment that relies on current medical knowledge or on the best available objective evidence, to ascertain: the nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modifications of policies, practices, or procedures will mitigate the risk.
Enforcement of ADA Regulations
Private parties may bring lawsuits to 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. A business may be fined by the Department of Justice for violating the ADA. Under Title III, the Department of Justice may obtain civil penalties of up to $55,000 for the first violation and $110,000 for any subsequent violation.
Section 302 In Action
The following are some practical examples of how Section 302 can impact private businesses:
For example, Section 302 requires businesses to allow people with disabilities to bring their service animals onto business premises in whatever areas customers are generally allowed. A service animal is not limited to seeing eye dogs. Under the ADA, a service animal is any guide dog, signal dog, or other animal individually trained to provide assistance to an individual with a disability. The service animal does not have to licensed or certified by the local or state government to be considered a service animal under the ADA. Businesses with strict “no pet” policies may need to modify the policy to ensure compliance with Section 302.
In at least one instance, a concert venue has been found to be in violation of Section 302 for refusing to allow diabetic individuals to keep their diabetic supplies (including needles for insulin, lacets for blood testing, and food) with them on the premises. Although the concert venue allowed these supplies to be kept in a designated first aid area in order to protect the health and safety of other patrons at the venue, the Department of Justice determined that such a policy violated the ADA by denying diabetic individuals the equal opportunity to enjoy the concerts they attended. Consequently, the concert venue had to modify its policy to allow diabetic individuals to keep their supplies in their possession during concerts.