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	Fair Housing Amendments Act of 1988
	Section 504 of the Rehabilitation Act of 1973
	Americans with Disabilities Act of 1990 --Title III-Public Accommodations
	Fair Housing Rights of Persons with Disabilities
	Reasonable Accommodations
	Reasonable Modifications
	Frequently Asked Questions

AMERICANS WITH DISABILITIES ACT OF 1990 (ADA)

TITLE III—PUBLIC ACCOMMODATIONS AND SERVICES OPERATED BY PRIVATE ENTITIES

Title III of the Americans with Disabilities Act of 1990 (ADA) deals with public accommodations and services operated by private entities. Title III of the ADA states that no individuals 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 accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.⁵¹

Places of public accommodation must be operated in accordance with the full range of Title III requirements, such as nondiscriminatory eligibility criteria, reasonable modifications in policies, practices, and procedures, provision of auxiliary aids, removal of barriers in existing facilities, and requirements for new construction and alterations.⁵²

“Place of public accommodation” means a facility, operated by a private entity, whose operations affect commerce and fall within at least one of twelve categories which includes 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 the establishment as the residence of the proprietor.⁵³

The obligations of Title III only extend to private entities. State and local government entities are public entities covered by Title II of the ADA, not by Title III. The Federal government is not covered by Title III of the ADA and is not a public entity under Title II. The Federal government is covered by Section 504 of the Rehabilitation Act of 1973.⁵⁴ Where public and private entities act jointly, the public entity must ensure that the relevant requirements of Title II are met and the private entity must ensure compliance with Title III.⁵⁵

EXAMPLE:
A private, non-profit corporation operates a number of group homes under contract with a State agency for the benefit of individuals with mental disabilities. These particular homes provide a significant enough level of social services to be considered places of public accommodation under Title III of the ADA. The State agency must ensure that its contracts are carried out in accordance with Title II and the private entity must ensure that the homes comply with Title III.⁵⁶

Although Title III of the ADA does not apply to strictly residential facilities, it covers places of public accommodation within residential facilities, such as an apartment complex’s leasing office¹. Thus, areas within multi-family residential facilities that qualify as places of public accommodation are covered by the ADA if use of the areas is not limited exclusively to owners, residents, and their guests.⁵⁷

NOTE:

EXEMPTIONS: The obligations of Title III of the ADA do not apply to any private club, any religious entity, or public entity.⁵⁸ Facilities of a private club lose their exemption to the extent that they are made available for use by nonmembers as a place of public accommodation.⁵⁹ The religious entity exemption covers all of the activities of a religious entity, whether religious or secular.⁶⁰ Public entities are covered under Title II of the ADA.

EXAMPLE # 1:
A private residential apartment complex includes a swimming pool for use by apartment tenants and their guests. The complex also sells pool “memberships” generally to the public. The pool qualifies as a place of public accommodation.⁶¹

EXAMPLE # 2:
A residential condominium association maintains a longstanding policy of restricting use of its party room to owners, residents, and their guests. Consistent with that policy, it refuses to rent the room to local businesses and community organizations as a meeting place for educational seminars. The party room is not a place of public accommodation.⁶²

EXAMPLE # 3:
A private residential apartment complex contains a rental office. The rental office is a place of public accommodation.⁶³

REMOVAL OF ARCHITECTURAL BARRIERS

Under Title III of the ADA, a public accommodation must remove architectural barriers in existing facilities, including communication barriers that are structural in nature, where such removal is readily achievable, i.e., easily accomplishable and able to be carried out without much difficulty or expense.⁶⁴ Architectural barriers are physical elements of a facility that impede access by people with disabilities. These barriers include more obvious impediments such as steps and curbs that prevent access by people who use wheelchairs.⁶⁵ Examples of steps to remove barriers include, but are not limited to, the following actions--

installing ramps;
making curb cuts in sidewalks and entrances;
repositioning shelves;
rearranging tables, chairs, vending machines, display racks, and other furniture;
repositioning telephones;
adding raised markings on elevator control buttons;
installing flashing alarm lights;
widening doors;
installing offset hinges to widen doorways;
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.⁶⁶

Public accommodations must provide in working order equipment and features of facilities that are required to provide ready access to individuals with disabilities. However, isolated or temporary interruptions in access due to maintenance or repair of accessible features are not prohibited. Where a public accommodation must provide an accessible route, the route must remain accessible and not blocked by obstacles such as furniture, filing cabinets, or potted plants. Similarly, accessible doors must be unlocked when the place of public accommodation is open for business.⁶⁷

Determining when barrier removal is readily achievable is necessarily a case-by-case judgment. Factors to consider include the nature and cost of the action, the overall financial resources of the site or sites involved, the number of persons employed at the site, the effect on expenses and resources, legitimate safety requirements necessary for safe operation, including crime prevention measures, or any other impact of the action on the operation of the site, and the geographic separateness, and the administrative or fiscal relationship of the site or sites in question to any parent corporation or entity.⁶⁸

Where a public accommodation can demonstrate that barrier removal is not readily achievable, the public accommodation shall not fail to make its goods, services, facilities, privileges, advantages, or accommodations available through alternative methods, if those methods are readily achievable.⁶⁹ Examples of alternatives to barrier removal include, but are not limited to, the following actions--

providing curb service or home delivery;
retrieving merchandise from inaccessible shelves or racks; or
relocating activities to accessible locations.⁷⁰

However, the obligation to engage in readily achievable barrier removal is a continuing one. Over time, barrier removal that initially was not readily achievable may later be required because of changed circumstances. The obligation to remove barriers is continuing, but not unlimited.⁷¹

The United States Department of Justice (DOJ) recommends priorities for removing barriers in existing facilities. A public accommodation is urged to take measures to comply with the barrier removal requirements in accordance with the following order of priorities:

First, a public accommodation should take measures to provide access to a place of public accommodation from public sidewalks, parking, or public transportation. These measures included, for example, installing an entrance ramp, widening entrances, and providing accessible parking spaces.
Second, a public accommodation should take measures to provide access to those areas of a place of public accommodation where goods and services are made available to the public. These measures include, for example, adjusting the layout of display racks, rearranging tables, providing Brailled and raised character signage, widening doors, providing visual alarms, and installing ramps.
Third, a public accommodation should take measures to provide access to restroom facilities. These measures include, for example, removal of obstructing furniture or vending machines, widening doors, installation of ramps, providing accessible signage, widening toilet stalls, and installation of grab bars.
Fourth, a public accommodation should take any other measures necessary to provide access to the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation.⁷²

SURCHARGES

Title III of the Americans with Disabilities Act of 1990 provides that a public accommodation may not impose a surcharge on a particular individual with a disability or any group of individuals with disabilities to cover the costs of measures, such as the provision of auxiliary aids, barrier removal, alternatives to barrier removal, and reasonable modifications in policies, practices, or procedures, that are required to provide that individual or group with the nondiscriminatory treatment required by the Act.⁷³

Although compliance may result in some additional cost, a public accommodation may not place a surcharge only on particular individuals with disabilities or groups of individuals with disabilities to cover these expenses.⁷⁴

EXAMPLE:
In order to ensure effective communication with a rental applicant with a hearing impairment during the application process, a manager of an apartment complex arranges for the services of a sign language interpreter. The cost of the interpreter’s services must be absorbed by the manager.⁷⁵

AUXILIARY AIDS AND SERVICES

A public accommodation shall take those steps that may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the public accommodation can demonstrate that taking those steps would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations being offered or would result in an undue burden, i.e., significant difficulty or expense.⁷⁶ In addition, a public accommodation shall furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities.⁷⁷

TYPE OF DISABILITY

HEARING
IMPAIRMENT

VISION
IMPAIRMENT

SPEECH
IMPAIRMENT

EXAMPLES

OF

AUXILIARY

AIDS

AND

SERVICES

▪	qualified interpreters
▪	notetakers
▪	computer-aided transcription services
▪	written materials
▪	telephone handset amplifiers
▪	assistive listening devices
▪	assistive listening systems
▪	telephones compatible with hearing aids
▪	closed caption decoders
▪	telecommunications devices for deaf persons (TDD’s)
▪	videotext displays
▪	exchange of written notes
▪	other effective methods⁷⁸

▪	qualified readers
▪	taped texts
▪	audio
▪	recordings
▪	Brailled materials
▪	large print materials
▪	assistance in locating items
▪	other effective methods⁷⁹

▪	TDD’s
▪	computer terminals
▪	speech synthesizers
▪	communication boards
▪	other effective methods⁸⁰

ALTERNATIVES

A public accommodation is not required to provide an auxiliary aid or service that would fundamentally alter the nature of the goods or services offered or that would result in an undue burden. A fundamental alteration is a modification that is so significant that it alters the essential nature of the goods, services, facilities, privileges, advantages, or accommodations offered. An undue burden is defined as significant difficulty or expense.⁸¹

However, the fact that providing a particular auxiliary aid or service would result in a fundamental alteration or undue burden does not necessarily relieve a public accommodation from its obligation to ensure effective communication. The public accommodation must still provide an alternative auxiliary aid or service that would not result in an undue burden or fundamental alteration but that would ensure effective communication to the maximum extent feasible, if one is available.⁸²

NEW CONSTRUCTION

Public accommodations must comply with the new construction and alterations requirements of Title III of the ADA only with respect to facilities used or built as places of public accommodation, such as a leasing office of an apartment complex. Title III provides that discrimination 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.⁸³

“Readily accessible and usable” means that facilities must be built in strict compliance with the Americans with Disabilities Act Accessibility Guidelines (ADAAG). There is no cost defense to the new construction requirements.⁸⁴

Full compliance with the requirements is not required where an entity can demonstrate that it is structurally impractical to meet the requirements. Full compliance will be considered structurally impractical only in those rare circumstances when the unique characteristics of terrain prevent the incorporation of accessibility features.⁸⁵ However, if full compliance with this section would be structurally impractical, compliance with this section is required to the extent that it is not structurally impracticable. In that case, any portion of the facility that can be made accessible shall be made accessible to the extent that it is not structurally impracticable.⁸⁶

ALTERATIONS

Any alteration to a place of public accommodation or a commercial facility, begun 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 with wheelchairs.⁸⁷ An alteration is a change to a place of public accommodation or commercial facility that affects or could affect the usability of the building or facility or any part thereof.⁸⁸

Alterations include, but are not limited to, remodeling, renovation, rehabilitation, reconstruction, historic restoration, changes or rearrangement in structural parts or elements, and changes or rearrangements in the plan configuration of walls and full-height partitions. Normal maintenance, reproofing, painting or wallpapering, asbestos removal, or changes to mechanical and electrical systems are not alterations unless they affect the usability of the building or facility.⁸⁹

“To the maximum extent feasible” applies to the occasional case where the nature of an existing facility makes it virtually impossible to comply fully with applicable accessibility standards through a planned alteration. In these circumstances, the alteration shall provide the maximum physical accessibility feasible. Any altered features of the facility that can be made accessible shall be made accessible.⁹⁰ However, the fact that adding accessibility features during an alteration may increase costs does not mean compliance is technically infeasible. Cost is not to be considered. Moreover, even when it may be technically infeasible to comply with standards for individuals with certain disabilities (for instance, those who use wheelchairs), the alteration must still comply with standards for individuals with other impairments.⁹¹

EXAMPLE:
A doorway is being relocated and a new door will be installed. The new doorway must be wide enough to meet the ADA Accessibility Guidelines. In addition, the new door must have appropriate hardware that can be used without grasping, twisting, or pinching of the wrist.⁹²

ALTERATIONS—Path of Travel

When an alteration is made to a “primary function area,” not only must that alteration be done in compliance with the ADA’s Accessibility Guidelines, but there must also be an accessible path of travel from the altered area to the entrance. The “path of travel” requirement includes an accessible route to the altered area and the bathrooms, telephones, and drinking fountains serving the area. Alterations to provide an accessible path of travel area required to the extent that they are not disproportionate to the original alteration, that is, to the extent that the added accessibility costs do not exceed 20 percent of the cost of the original alteration to the primary function area.⁹³

A “primary function area” is any area where a major activity takes place. It includes both the customer services areas and work areas in places of public accommodation. It does not include mechanical rooms, boiler rooms, supply storage rooms, employee lounges or locker rooms, janitorial closets, entrances, corridors, or restrooms.⁹⁴

A “path of travel” includes a continuous, unobstructed way of pedestrian passage by means of which the altered area may be approached, entered, and exited, and which connects the altered area with an exterior approach (including sidewalk, streets, and parking areas), an entrance to the facility, and other parts of the facility. An accessible path of travel may consist of walks and sidewalks, curb ramps, and other interior and exterior pedestrian ramps; clear floor paths through lobbies, corridors, rooms, and other improved areas; parking access aisles; elevators and lifts; or a combination of these elements.⁹⁵

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