Making Sense of the Difference in ADA Requirements for Commercial Facilities and Public Accommodations

Title III of the ADA speaks to requirements for both "commercial facilities" and "public accommodations."  The "new construction" and "alterations" standards apply equally to both.  But the "readily achievable" standard only applies to "public accommodations."  "Commercial facilities" are privately owned, non residential facilities that affect commerce, such as factories or warehouses or even some office buildings, that are not subject to the "readily achievable" standard, because they do not fall in one of the following 12 categories that define a "public accommodation:"

1) Places of lodging (e.g. , inns, hotels, motels) (except for owner-occupied establishments renting fewer than six rooms);

2) Establishments serving food or drink (e.g. , restaurants and bars);

3) Places of exhibition or entertainment (e.g. , motion picture houses, theaters, concert halls, stadiums);

4) Places of public gathering (e.g. , auditoriums, convention centers, lecture halls);

5) Sales or rental establishments (e.g. , bakeries, grocery stores, hardware stores, shopping centers);

6) Service establishments (e.g. , laundromats, dry-cleaners, banks, barber shops, beauty shops, travel services, shoe repair services, funeral parlors, gas stations, offices of accountants or lawyers, pharmacies, insurance offices, professional offices of health care providers, hospitals);

7) Public transportation terminals, depots, or stations (not including facilities relating to air transportation);

8) Places of public display or collection (e.g. , museums, libraries, galleries);

9) Places of recreation (e.g. , parks, zoos, amusement parks);

10) Places of education (e.g. , nursery schools, elementary, secondary, undergraduate, or postgraduate private schools);

11) Social service center establishments (e.g. , day care centers, senior citizen centers, homeless shelters, food banks, adoption agencies); and

12) Places of exercise or recreation (e.g. , gymnasiums, health spas, bowling alleys, golf courses).

In short, while public accommodations are required to remove architectural barriers on an ongoing basis to the extent they can do so without much difficulty or expense, commercial facilities have no such obligation.  When newly constructed or altered, both must comply with ADA standards for accessibility.  However, only public accommodations have the ongoing obligation to remove barriers from existing facilities--commercial facilities that are not also public accommodations, do not.  Such existing commercial facilities may still be required to remove barriers as a reasonable accommodation to an employee with a disability pursuant to Title I of the ADA, but Title III places no ongoing obligation to comply with the "readily achievable" standard.  See relevant statutes and regulations below:

READILY ACHIEVABLE STANDARD:

"No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the good services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation."

42 U.S.C. § 12182(a)(emphasis added)

" For purposes of subsection (a), discrimination includes --

***

a failure to remove architectural barriers, and communication barriers that are structural in nature, in existing facilities … where such removal is readily achievable...."

42 U.S.C. § 12182(b)(iv)(emphasis added).

ALTERATIONS STANDARD:

"Any alteration to a place of public accommodation or a commercial facility, after January 26, 1992, shall be made so as to ensure that, to the maximum extent feasible, the altered portions of the facility are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs."

28 C.F.R. § 36.402(a)(1)(emphasis added).

NEW CONSTRUCTION STANDARD:

"[D]iscrimination … includes a failure to design and construct facilities for first occupancy after January 26, 1993, that are readily accessible to and usable by individuals with disabilities.

42 U.S.C. § 36.401(a).

ADA Requirements for Hotel and Cruise Ship Reservations

The 2010 amendments to the Americans with Disabilities Act specifically revised the process and obligations for a place of lodging to reserve accessible guest accommodations for individuals with disabilities, as follows:

(1) Reservations made by places of lodging. A public accommodation that owns, leases (or leases to), or operates a place of lodging shall, with respect to reservations made by any means, including by telephone, in-person, or through a third party -

(i) Modify its policies, practices, or procedures to ensure that individuals with disabilities can make reservations for accessible guest rooms during the same hours and in the same manner as individuals who do not need accessible rooms;

(ii) Identify and describe accessible features in the hotels and guest rooms offered through its reservations service in enough detail to reasonably permit individuals with disabilities to assess independently whether a given hotel or guest room meets his or her accessibility needs;

(iii) Ensure that accessible guest rooms are held for use by individuals with disabilities until all other guest rooms of that type have been rented and the accessible room requested is the only remaining room of that type;

(iv) Reserve, upon request, accessible guest rooms or specific types of guest rooms and ensure that the guest rooms requested are blocked and removed from all reservations systems; and

(v) Guarantee that the specific accessible guest room reserved through its reservations service is held for the reserving customer, regardless of whether a specific room is held in response to reservations made by others.

(2)Exception. The requirements in paragraphs (iii), (iv), and (v) of this section do not apply to reservations for individual guest rooms or other units not owned or substantially controlled by the entity that owns, leases, or operates the overall facility.

(3)Compliance date. The requirements in this section will apply to reservations made on or after March 15, 2012.

See 28 CFR 36.302(e).

These regulations empower people with disabilities to require that they be able to make reservations for accessible guest rooms "by any means."  This would include via a website, and during the same hours and in the same manner as people who do not require accessible guest rooms.  You cannot be required to call to reserve your accessible room if able-bodied people can reserve a typical room without calling.

All means of making reservations must "identify and describe accessible features in the hotel and guest rooms" sufficient to permit someone with a disability to determine if a given hotel or room meets his or her accessibility needs.  Accessible rooms must be held for people with disabilities until all other guest rooms have been rented and the accessible room is the only remaining room of the requested type.

Most importantly, all means of making reservations must reserve the specific accessible guest room reserved for the reserving party and remove it from all reservations systems to ensure it is held for the reserving customer.

Next time you go online to reserve an accessible room--can you determine if it meets your needs from the information provided?  Is the room reserved actually blocked from all reservations systems such that it is provided to you upon your arrival?  If not, the ADA has been violated and so have your civil rights.

Per the exception in 28 CFR 36.302(e)(2), above, I recommend you make your reservation for accessible accommodations via the hotel where you plan to stay.  Simply put, third-party websites who have purchased blocks of rooms to resell them to the public are exempted from the requirement to reserve the specific room requested, remove it from all reservations systems and guarantee the specific room reserved is held for the reserving customer, as these third-party resellers neither own nor control the overall facility.

I have had success in applying these provisions to online reservations systems of two major cruise lines whose websites did not allow prospective guests with disabilities to assess whether the "accessible" guest quarters available met with their individual needs, nor did they assure that once a reservation was made for a specific accessible cabin, that such cabin was removed from all reservations systems and held for the reserving party.

Hotels and cruise lines have now had 7 years to comply since the effective date of these "new" regulations.  How would you say they are doing in this regard?

I hope this helps--safe travels!

Website Content Accessibility Requirements and the ADA

Currently there are no rules or regulations from the Department of Justice (DOJ) to give guidance to public accommodations or public entities as to what is required for a website to be considered accessible.  In fact, DOJ is still accepting comments through August 8, 2016 in connection with proposed rulemaking in this regard that is not anticipated until 2018.  Does this mean that businesses get a pass until then?  Not necessarily.  There has already been some landmark litigation in this arena as well as a number of DOJ administrative actions that provide guidance to what the law is currently, in the absence of the forthcoming regulations.

As far as litigation is concerned, the 9th Circuit has already made some law in this area in National Federation of the Blind v. Target Corp.,  452 F. Supp. 2d 946 (N.D. Cal. 2006).  In Target, plaintiffs with visual impairments claimed target.com was not accessible.  In determining this case, the 9th Circuit did not hold that a website was a public accommodation in its own right (though this may indeed be the position of the DOJ), but rather held there must be a nexus between the services available on the website and the physical brick and mortar store that qualifies as a public accommodation.  In other words, there must be a certain amount of integration between the website and the brick and mortar store such that the barriers to access of the website impede the full and equal access to the physical store(s).

Subsequently, DOJ has entered into settlement agreements on numerous similar complaints and has given insight as to what their likely regulations will be once released in 2018.  For the time being, it appears that DOJ is favoring the Web Content Accessibility Guidelines 2.0 (WCAG 2.0) as per its agreements with H&R Block in 2014 and Carnival Cruise lines in 2015, concerning the accessibility of their websites.

WCAG 2.0 requirements are freely available at www.w3.org.  In summary they require that webpages be fully perceivable, understandable and operable by users so that content can be more easily seen and heard, without content likely to cause seizures, and in a manner compatible with assistive technologies.

In practice, some examples of what this can entail are:

1.  Every non-text element should have a text equivalent;

2.  Color should not be the sole means of conveying information;

3.  Scripting languages used to display content or to create interfaces should be identifiable by text;

4.  If the content has a time limit, the user is able to adjust that time limit;

5.  Instructions should be provided for required user input;

More and more often, business is conducted electronically to the exclusion of face to face transactions. For example, many banks are beginning to close drive-through windows in light of the prevalence of electronic banking and as a method of reducing overhead by employing fewer tellers.  The accessibility of web content, therefore, is paramount to continuing to provide equal access to people with disabilities.

Website Content Accessibility Requirements and the ADA

Currently there are no rules or regulations from the Department of Justice (DOJ) to give guidance to public accommodations or public entities as to what is required for a website to be considered accessible.  In fact, DOJ is still accepting comments through August 8, 2016 in connection with proposed rulemaking in this regard that is not anticipated until 2018.  Does this mean that businesses get a pass until then?  Not necessarily.  There has already been some landmark litigation in this arena as well as a number of DOJ administrative actions that provide guidance to what the law is currently, in the absence of the forthcoming regulations.

As far as litigation is concerned, the 9th Circuit has already made some law in this area in National Federation of the Blind v. Target Corp.,  452 F. Supp. 2d 946 (N.D. Cal. 2006).  In Target, plaintiffs with visual impairments claimed target.com was not accessible.  In determining this case, the 9th Circuit did not hold that a website was a public accommodation in its own right (though this may indeed be the position of the DOJ), but rather held there must be a nexus between the services available on the website and the physical brick and mortar store that qualifies as a public accommodation.  In other words, there must be a certain amount of integration between the website and the brick and mortar store such that the barriers to access of the website impede the full and equal access to the physical store(s).

Subsequently, DOJ has entered into settlement agreements on numerous similar complaints and has given insight as to what their likely regulations will be once released in 2018.  For the time being, it appears that DOJ is favoring the Web Content Accessibility Guidelines 2.0 (WCAG 2.0) as per its agreements with H&R Block in 2014 and Carnival Cruise lines in 2015, concerning the accessibility of their websites.

WCAG 2.0 requirements are freely available at www.w3.org.  In summary they require that webpages be fully perceivable, understandable and operable by users so that content can be more easily seen and heard, without content likely to cause seizures, and in a manner compatible with assistive technologies.

In practice, some examples of what this can entail are:

1.  Every non-text element should have a text equivalent;

2.  Color should not be the sole means of conveying information;

3.  Scripting languages used to display content or to create interfaces should be identifiable by text;

4.  If the content has a time limit, the user is able to adjust that time limit;

5.  Instructions should be provided for required user input;

More and more often, business is conducted electronically to the exclusion of face to face transactions. For example, many banks are beginning to close drive-through windows in light of the prevalence of electronic banking and as a method of reducing overhead by employing fewer tellers.  The accessibility of web content, therefore, is paramount to continuing to provide equal access to people with disabilities.

Elevators--Where are they NOT required?

I've been frequently asked about elevators recently.  Not every new construction multi-story building is actually required to have an elevator by the ADA.  There are certain exemptions for elevators.  The regulation explaining where the ADA does NOT require elevators in new construction is located at 28 C.F.R. 36.401(d) (and is commonly referred to as the "elevator exemption").  In short an elevator is NOT required:

In a facility with less than three stories or which has less than 3000 square feet per story.

This exemption is not absolute and certain types of accommodations or services are nonetheless required to provide an elevator--even if they have less than three stories or less than 3000 square feet per story.  There are a few types of facilities that would still be required to have an elevator, as follows:

1.  A shopping center or shopping mall (provided sales and rental establishments are not limited to the ground floor only);

2.  A professional office of a health care provider (provided such offices are not limited to the ground floor only);

3.  A facility that houses a public transportation station, terminal or depot or an airport passenger terminal.

In existing facilities that do not have elevators, but would require them under the new construction guidelines of the ADA had they been constructed more recently, the question becomes whether it is readily achievable to provide an elevator.  (See my blog entry entitled What does "Readily Achievable" mean? if you don't already know).

Where it isn't readily achievable to provide an elevator, then the question becomes what reasonable accommodations can be afforded.  For example, in a bar with a second floor performance stage, perhaps the stage could be relocated to the ground floor.  Or, perhaps closed circuit television screens could be provided on the ground floor so that the show could still be seen (and not only heard) on the ground floor in cases where the ground floor lacked the necessary room for the stage. 

In any event, just because a facility may be exempt from the requirement to provide an elevator does not mean that the facility is also exempt from other ADA requirements on upper floors.  To the contrary, the elevator exemption specifically provides, "The elevator exemption set forth in this paragraph (d) does not obviate or limit, in any way the obligation to comply with the other accessibility requirements established in paragraph (a) of this section."  In other words, but for the lack of an elevator, facilities with multiple stories that meet the elevator exemption, must still be designed and constructed to be readily accessible to and usable by individuals with disabilities in all other regards.

Service Animals: Your Rights are Different at Home, at Work and in Public Accommodations

The 2010 Amendments to the ADA limited the definition of a service animal.  This has caused confusion for housing providers and employers.  Keep in mind that Section 504 of the Rehabilitation Act and the Fair Housing Act apply to housing as well and HUD has construed the definition of a service animal more broadly than the ADA, as amended.  Here is HUD guidance on how the ADA requirements for public accommodations (stores, restaurants, etc.) differ from housing requirements:  https://portal.hud.gov/hudportal/documents/huddoc?id=servanimals_ntcfheo2013-01.pdf. 

In summary, the ADA has limited the definition of a service animal under Titles II and III of the ADA to only dogs, and has specifically excluded such animals that only provide "emotional support."  In short, these limitations on the definition of a service animal do NOT apply to housing.  If you require the service of an emotional support animal to use and enjoy your dwelling, your rights may be protected under the HUD interpretation of laws applicable to equal housing opportunities to people with disabilities, despite the limitations contained in the ADA, as amended.  DOJ guidance further explains how the revised ADA definition of service animals applies only under the ADA and NOT under the Fair Housing Act or Air Carrier Access Act (applicable to travel aboard commercial airlines).  http://www.ada.gov/service_animals_2010.htm.  The result is, an emotional support animal is likely protected at home or on airline travel, but not necessarily while dining out or shopping, unless it also meets the revised ADA definition of a service animal.

Moreover, employers subject to Title I of the ADA may not necessarily refuse accommodation to employees with disabilities based on the revised definition of a service animal under Titles II and III of the ADA.  It is certainly conceivable that a comfort animal could be a reasonable accommodation necessary to an employee's performance of the essential functions of his or her job that would not unduly burden the employer.  These determinations must be made on a case by case basis and blanket exclusion of comfort animals without further consideration is likely violative of an employer's obligations under Title I of the ADA.

How to Advocate Effectively

I'm proud to represent Jean Marie Lawrence of Chattanooga, Tennessee.  Her recent efforts to bring access to the downtown Chattanooga Post Office are representative of two important topics I'd like to share.  The first is how to be an effective advocate.  The second is the reason why it is necessary for more people with disabilities to become effective advocates.

Effective advocacy looks like this:  https://youtu.be/Sr-Ol8uOeVs.  Jean Marie went to the post office in downtown Chattanooga after receiving a notice that there was a package waiting for her.  She arrived at this post office to find an extensive flight of granite stairs leading to the main entrance.  The post office is located in the Joel Solomon Federal Building which was constructed in 1932-3 and is on the National Register of Historic Places.  There wasn't a single sign indicating the location of an accessible entrance.  Eventually, with the assistance of a stranger, Jean Marie learned there was a ramp leading to a service entrance in the rear of the building adjacent to the loading dock.  This is an employee only entrance and Jean Marie felt the ramp to be excessively steep. 

Jean Marie said this experience made her feel like a piece of junk mail  - and she did something about it.  Jean Marie got everyone's attention.  She didn't just complain to the one postal worker on duty at this post office during her attempted visit.  She didn't just complain to the police.  She didn't just send a letter to her Congressman.  She didn't just file an administrative complaint with the US Access Board.  She also didn't just stop with talking to the local news to bring attention to the situation she and every other individual in a wheelchair faces when trying to access this post office.  She is organizing and mobilizing her local disabled community toward seeing this issue remedied.  This is effective advocacy. 

Why should people with disabilities do this?   Simple.  Because no one else will.  There is no one to go around and inspect facilities, programs and services to ensure they are equally accessible to people with disabilities.  It is up to people with disabilities to enforce their own civil rights.  Thank you Jean Marie!