Of Consuming Interest: A Guide to Titles II & III of the ADA for People with Vision Loss
The Americans with Disabilities Act Communications Accommodations Project
Prepared by
Governmental Relations Department
American Foundation for the Blind
820 First Street, N.E., Suite 400
Washington, DC 20002
Written by
Scott Marshall, J.D.
Former Vice President, Governmental Relations
American Foundation for the Blind
Funded by a grant from the U.S. Department of Justice
A document containing questions and answers about the ADA cannot address every barrier to access which you may face as a person who is blind, deaf-blind, or visually impaired. Rather, the questions and answers in this document have been carefully selected because they involve the application of ADA principles, concepts, and interpretations that should guide you when applying the ADA to your own real-life problems or situations.
Section I of this document explains some basic ADA concepts and definitions. These concepts apply primarily to places of public accommodation covered by Title III of the ADA. The broad range of Title III obligations relating to "places of public accommodation" must be met by entities that the Department of Justice regulation labels as "public accommodations." In order to be considered a public accommodation with Title III obligations, an entity must be private and it must:
Own;
Lease;
Lease to; or
Operate a place of public accommodation.
What is a place of public accommodation? A place of public accommodation is a facility whose operations:
Affect commerce; and;
Fall within at least one of the following 12 categories:
Places of lodging (e.g., inns, hotels, and motels) (except for owner-occupied establishments renting fewer than six rooms);
Establishments serving food or drink (e.g., restaurants and bars);
Places of exhibition or entertainment (e.g., motion picture houses, theaters, concert halls, and stadiums);
Places of public gathering (e.g., auditoriums, convention centers, and lecture halls);
Sales or rental establishments (e.g., bakeries, grocery stores, hardware stores, and shopping centers);
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, and professional offices of health care providers, and hospitals);
Public transportation terminals, depots, or stations (not including facilities relating to air transportation);
Places of public display or collection (e.g., museums, libraries, and galleries);
Places of recreation (e.g., parks, zoos, and amusement parks)
Places of education (e.g., nursery schools, elementary, secondary, undergraduate, or postgraduate private schools);
Social service center establishments (e.g., day-care centers, senior citizen centers, homeless shelters, food banks, and adoption agencies); and
Places of exercise or recreation (e.g., gymnasiums, health spas, bowling alleys, and golf courses).
In Section I, you will find the meaning of terms like "undue burden," "readily achievable," and "fundamental alteration." Sections II and III present real-life scenarios that illustrate ADA compliance by both state or local governments and places of public accommodation. If you need further help in analyzing the application of the ADA, you should contact one of the organizations listed in the resource list for further assistance.
NOTE: In addition to their obligations under Titles II and III, state and local governments and private businesses may also have certain obligations regarding employment covered by Title I of the ADA. If you need information regarding employment you should contact the Equal Employment Opportunity Commission (EEOC). The EEOC's address and phone number are contained in the resource list. In addition, Titles II and III of the ADA cover certain types of transportation. For information concerning the transportation provisions of the ADA, contact the U.S. Department of Transportation (DOT). The DOT's address and telephone number are contained in the resource list. You may also wish to obtain copies of the Title II and Title III regulations together with their corresponding Technical Assistance Manuals, which are published by the U.S. Department of Justice (see the resource list for the address). The purpose of this document is to provide advice to persons who are blind, deaf-blind, or visually impaired concerning their rights and obligations under Titles II and III of the Americans with Disabilities Act (ADA).
Section I: General Concepts and Definitions
Let's start with the most basic question:
What is the ADA?
The ADA is a civil rights law signed by President Bush on July 26, 1990. The law mandates that individuals with disabilities shall have access to jobs, public accommodations, government services, public transportation, and telecommunications--in short, participation in, and full access to, all aspects of society. The law is designed to be flexible in the way which state and local governments and businesses can comply with ADA requirements and further recognizes that certain accommodations may be too costly or burdensome for a particular business or government agency to provide.
Is the ADA the supreme law of the land with respect to disability civil rights?
Not always. Section 501 of the ADA provides that the ADA does not supersede state and local laws to the extent that state and local disability laws provide greater protection as compared to the ADA. Many states have laws guaranteeing the rights of persons with disabilities. These state laws differ widely in terms of who is protected, the definition of a public accommodation, the size of employers covered, and remedies (including injunctions or monetary damages) for violation of the law. The ADA is not the only law relating to disability rights and, accordingly, you should consult your state and local laws with respect to your rights or obligations.
Since the ADA is patterned after Section 504 of the Rehabilitation Act of 1973 as amended, which is familiar to everyone, compliance with the ADA will be easy. Right?
Section 504 bans discrimination on the basis of disability by recipients of federal funds. Although much of the interpretation of Section 504 is reflected in the ADA and its regulations, some provisions go beyond Section 504. In addition, although recipients of federal funds have been subject to Section 504 for many years, the ADA now applies to many individuals and entities who know nothing about Section 504 and its regulatory and judicial history. One recent survey found that only 18 percent of the American public has heard of the ADA. Thus, effective compliance with the ADA will involve an educational effort in which we all must participate. Knowing one's legal rights and obligations under the ADA is but the first step in this process.
In general, what must a state or local government or place of public accommodation do for patrons who are blind, deaf-blind, or visually impaired to comply with Titles II and III of the ADA?
Generally speaking, individuals who are blind, deaf-blind, or visually impaired may not be denied full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations provided by a state or local government or place of public accommodation. In other words, entities such as hospitals, nursing homes, hotels, government agencies, retail establishments, restaurants, hotels, day-care centers, and professional offices of health care providers must ensure that persons who are blind, deaf-blind, or visually impaired have an equal opportunity to participate in and benefit from all of the goods and services provided by such entities. This may mean, depending on the circumstances, that policies or procedures must be modified, discriminatory eligibility criteria eliminated, auxiliary aids and services provided, or structural communication barriers removed in existing facilities. For example, structural communication barriers may be eliminated by using tactile and contrasting signage. Barriers to the acquisition of information may be eliminated through the provision of auxiliary aids and services. Auxiliary aids and services that may be provided include, but are not limited to, readers, taped texts, braille materials, and acquisition or modification of equipment.
Who decides what type of auxiliary aid should be provided?
Public accommodations should consult with the individual with the disability whenever possible to determine what type of auxiliary aid is needed to ensure effective communication. In many cases, more than one type of auxiliary aid or service will result in effective communication. While consultation is strongly encouraged, the ultimate decision as to what measures to take to ensure effective communication rests in the hands of the public accommodation, provided that the method chosen results in effective communication. Note, however, that under Title II (state and local government services) primary consideration must be given to the accommodation chosen by the individual with a disability. That means that the individual's choice of accommodation, aid, or service must be honored, unless the Title II entity can prove that another effective means of communication exists or that use of the means chosen by the individual with a disability would constitute an undue burden or fundamental alteration of the program or activity in question.
What are the limits on the auxiliary aids and services requirement?
The ADA does not require state and local governments or places of public accommodation to provide auxiliary aids or services that would result in an "undue burden" or in a "fundamental alteration" in the nature of the goods or services it provides. However, these entities still have a duty to furnish any available alternative auxiliary aid that would achieve effective communication and would not result in a fundamental alteration or undue burden.
When would providing an auxiliary aid or service be an undue burden?
An undue burden is something that involves a significant difficulty or expense. Among the factors to be considered in determining whether an action would result in an undue burden for a place of public accommodation are the following:
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;
The geographic separateness and the administrative or fiscal relationship of the site or sites in question to any parent corporation or entity;
If applicable, the overall financial resources of any parent corporation or entity; the overall size of the parent corporation or entity with respect to the number of its employees; the number, type, and location of its facilities; and
If applicable, the type of operation or operations of any parent corporation or entity, including the composition, structure, and functions of the workforce of the parent corporation or entity.
The definition of undue burden is identical to the definition of undue hardship used in Title I (employment) of the ADA. "Undue hardship" is the limitation on an employer's obligation to reasonably accommodate an applicant or employee.
What is a fundamental alteration?
A fundamental alteration is a modification that is so significant that it alters the essential nature of the programs, activities, goods, services, facilities, privileges, advantages, or accommodations offered.
Who pays for auxiliary aids or services?
Auxiliary aids or services must be provided free. A person who is blind, deaf-blind, or visually impaired may not be held responsible, directly or indirectly, for the costs of the auxiliary aid. However, the cost of providing auxiliary aids can be treated like other overhead costs which are passed on to all customers.
What is meant by the term "readily achievable" in the ADA?
Public accommodations are required to remove structural barriers in existing facilities if it is "readily achievable" to do so. "Readily achievable" means easily accomplishable and able to be carried out without much difficulty or expense. Determining if 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;
The geographic separateness and the administrative or fiscal relationship of the site or sites in question to any parent corporation or entity;
If applicable, the overall financial resources of any parent corporation or entity; the overall size of the parent corporation or entity with respect to the number of its employees; the number, type, and location of its facilities; and;
If applicable, the type of operation or operations of any parent corporation or entity, including the composition, structure, and functions of the workforce of the parent corporation or entity.
If the public accommodation is a facility that is owned or operated by a parent entity that conducts operations at many different sites, the public accommodation must consider the resources of both the local facility and the parent entity to determine if removal of a particular barrier is "readily achievable." The administrative and fiscal relationship between the local facility and the parent entity must also be considered in evaluating what resources are available for any particular act of barrier removal.
What types of modifications are generally considered "readily achievable?"
There is no definitive answer to this question. Whether or not a modification is readily achievable is to be determined on a case-by-case basis in light of the particular circumstances presented and the factors discussed above.
The Justice Department's regulation contains a list of 21 examples of modifications that may be readily achievable in most, but not all, cases. The list is intended to be illustrative. It includes items such as the installation of raised markings on elevators.
What is the difference between the "undue burden" standard, which relates to providing auxiliary aids and services, and the "readily achievable" standard for the removal of structural barriers?
A public accommodation is required to remove structural barriers only when it is "readily achievable" to do so. "Readily achievable" means easily accomplishable and able to be carried out without much difficulty or expense. By contrast, the undue burden standard requires a greater level of effort by a public accommodation in providing auxiliary aids and services than does the "readily achievable" standard for removing structural barriers in existing facilities. Although "readily achievable" is therefore a "lesser" standard, the factors to be considered in determining what is readily achievable are identical to those listed above for determining undue burden.
Most of the accommodations, aids, and services of importance to persons who are blind, deaf-blind, or visually impaired persons are not structural in nature and thus are usually auxiliary aids or services that frequently involve minimal cost. Items such as the provision of readers, taped texts, or sighted guide assistance are auxiliary aids or services that places of public accommodation and state and local governments must provide, unless they can show that doing so would result in an undue burden or fundamental alteration. By contrast, braille or raised character signage is structural in nature and must be provided in existing public accommodations facilities if it is readily achievable to do so; further, it must be provided in new construction and, to the maximum extent feasible, when existing facilities are altered. The requirements for accessibility in state and local government buildings are discussed in Part II of this document.
Does a public accommodation have an obligation to search for accessible space?
A public accommodation is not required to lease space that is accessible. However, upon leasing, the barrier removal requirements for existing facilities apply. In addition, any alterations to the space must meet the accessibility requirements for alterations.
What are the duties when a facility is altered?
The ADA does not require businesses to make alterations, but when they choose to do so, alterations must be made in a way that ensures that the altered portion is readily accessible to and usable by individuals with disabilities, to the maximum extent feasible.
How is "alteration" defined in the ADA?
An alteration is a remodeling, addition, or other change or rearrangement in structural parts of a place of public accommodation or a commercial facility that affects the usability of the facility. The ADA rule for alterations does not apply to normal maintenance, reroofing, painting, wallpapering, or changes to the mechanical and electrical systems. This rule applies only to physical alterations that began after January 26, 1992.
What are the requirements of accessibility with respect to existing facilities?
Existing public accommodations must remove architectural and structural communication barriers if their removal is readily achievable, that is, easily accomplishable and able to be carried out without much difficulty or expense. The readily achievable standard is flexible and depends on a number of factors relating to the size and resources of the public accommodation. The Justice Department regulations indicate that the installation of braille and raised character markings on elevators is an example of barrier removal that will be "readily achievable" under most circumstances. If barrier removal is not readily achievable, it is not required. However, in such cases, the services or goods must be made available through alternative methods, if the alternative methods are readily achievable. An example of an alternative method might be to provide home delivery of dry cleaning to a blind wheelchair user who could not enter the dry cleaning establishment because of a flight of stairs.
Existing commercial facilities (such as commercial office buildings) are not required to remove barriers unless the building is otherwise being altered. However, if a doctor's office or other public accommodation rents space in the office building, the owner of the office building, as the landlord of a place of public accommodation, under the ADA may have responsibilities for barrier removal.
Do the new construction and alteration requirements apply to public accommodations and commercial facilities with a very small number of employees, e.g., fewer than five?
Unlike the employment title of the ADA, the alterations requirements apply to all commercial facilities and public accommodations, regardless of the number of employees. The smallest public accommodations do have extra time before they can be sued for failure to provide auxiliary aids and services or failure to make modifications to existing facilities, but the new construction and alteration requirements are not subject to this time-limited moratorium on suits against small business.
What are the accessibility requirements with respect to new construction?
This part of the law applies to places of public accommodation and private facilities that are designed and constructed for first occupancy after January 26, 1993, and for which a completed application for a building permit or permit extension was filed after January 26, 1992. Newly constructed public accommodations and commercial facilities must be accessible, unless it is structurally impracticable, though this limitation would apply in very rare circumstances. However, buildings under three stories or under 3,000 square feet per story are not required to install elevators, unless the building is a shopping center or mall, the professional office of a health care provider, or a transit terminal or depot. This so-called elevator exemption would not excuse the owner from designing and constructing other accessible features, such as braille or raised character signage.
What are the standards for alterations?
When public accommodations and commercial facilities are altered, the altered area must be made accessible, unless it is technically infeasible. In addition, if the alteration affects the usability of a primary functional area of the building, an accessible path of travel to the altered area must be provided if providing it is not disproportionate in cost and scope--that is, if it does not cost more than 20 percent of the cost of the alteration. If providing an accessible path of travel to the altered area would exceed 20 percent of the alteration cost, only 20 percent must be spent and not more.
What are the ADA Accessibility Guidelines (ADAAG)?
The ADAAG contain detailed specifications for constructing and altering places of public accommodation to ensure, among other things, that they are free of structural communication barriers. The ADAAG, available as an appendix to the Justice Department's Title III regulations, contains several signage requirements of specific interest to persons who are blind, deaf-blind, or visually impaired: braille, raised characters, contrast, serif, and character height. In addition, the ADAAG contains provisions regarding braille and raised character elevator controls; audible direction and floor indicators; floor designations on elevator hoistways; protruding objects; and, in some situations, detectable warnings. The ADAAG also contains provisions regarding stairs and handrails. These ADAAG requirements generally must be incorporated into new construction and must be incorporated when facilities are being altered. Items such as raised character and braille elevator controls are usually required to be installed in existing facilities, because they involve little difficulty or expense and are generally considered to be readily achievable. The ADAAG also contains provisions requiring accessibility of automatic teller machines.
State and local governments may also choose to follow ADAAG standards or the Uniform Federal Accessibility Standards (UFAS) to meet their accessibility requirements in new and altered facilities. It is expected that most physical barriers will be removed over time, as new facilities are built and existing buildings are renovated.
Section II: Title II: State and Local Government Services
Do state and local governments have a duty to notify individuals with disabilities about their rights under Title II of the ADA?
Yes. Title II requires state and local governments to distribute information about their ADA duties to persons with disabilities. For example, governments can distribute this information to persons who are blind, deaf-blind, or visually impaired through a variety of means, including radio broadcasts, braille and large print, or telephone information systems. In addition, information can also be made available through service agencies for persons who are blind and advocacy organizations of persons who are blind, deaf-blind, or visually impaired.
Glenn, who is visually impaired, needs a business license to operate his store. Is a state agency that issues such licenses covered by the ADA?
Yes. All services, programs, or activities provided or made available by state or local government agencies are covered by Title II. Under the ADA, receipt of federal funds is not required. Examples of covered activities and entities include professional licensing, town hall meetings, state park inns, county recreation and amusement programs and facilities, and welfare offices. In addition, hospitals or other health care institutions that are operated by state or local governments are covered under Title II of the ADA. A public entity may not discriminate on the basis of disability in contracting for the purchase of goods or services. As a state agency, a bureau that issues business licenses would be covered by the ADA.
Glenn needs some assistance in filling out the form necessary to obtain the license. Can he expect that bureau personnel will provide this assistance?
Yes, subject to the defenses of undue burden and fundamental alteration of the program or activity in question, accommodations may include assistance in reviewing public documents and assistance in filling out forms for public services or voter registration. Unlike the employment or public accommodations titles of the ADA (Title I and III), state and local governments covered under Title II must give primary consideration to the accommodation chosen by the individual with a disability. In addition, the individual's choice of accommodation must be honored, unless the covered entity can prove that another effective means of communication exists or that use of the means chosen by the individual with a disability would constitute an undue burden or fundamental alteration of the program or activity in question.
My county, USA, has its offices in four buildings within the county. Must all of these buildings be equipped with braille and raised character signage?
No. A public entity may not deny the benefits of its programs, activities, or services to people with disabilities because its facilities are inaccessible. A public entity's programs, activities, and services, when viewed in their entirety, must be readily accessible to and usable by people with disabilities. This "program accessibility" standard applies to all existing facilities of a public entity. Public entities, however, are not required necessarily to make all of their existing facilities accessible. Alternate methods of providing program accessibility, such as providing services at another site, assigning aides to beneficiaries, or acquiring equipment, are permissible. Physical changes to a building are required only when there is no other feasible way to make the program accessible.
By contrast, structural barriers must be removed from places of public accommodation under Title III when such removal is "readily achievable," without regard to whether the public accommodation's services can be made accessible through other methods.
Thus, each of the county's buildings need not be equipped with braille or raised character signage as long as the county's programs, when viewed in their entirety, are accessible to people who are blind or visually impaired.
My county, USA, plans to build a new office tower. Must it comply with the ADAAG?
Not necessarily. All facilities designed, constructed, or altered by, on behalf of, or for the use of a public entity must be readily accessible to and usable by people with disabilities. The entity may choose to adopt either the ADAAG or the UFAS. One of these standards must be adopted completely. A public entity may not choose ADAAG for one floor of a building or alteration project and UFAS for another. Major differences between the two standards are summarized in the Department of Justice's Technical Assistance Manual at Sec. II-6.3000. State and local governments that choose to follow ADAAG must comply with the guidelines for their facilities that are built or altered after January 26, 1992.
My county, USA, plans to lease additional office space. Must leased space comply with ADAAG?
No. Public entities are encouraged, but are not required, to lease accessible space. Once it occupies a facility, however, the public entity must ensure that all of its programs conducted in that space are accessible, subject however to the program accessibility limitations discussed above.
Section III: Title III: Public Accommodations
John, who is visually impaired, wishes to stay at a small bed and breakfast occupied by Les Rich, its owner. It consists of four guest rooms. Is such an establishment covered by Title III of the ADA?
No. The bed and breakfast described above would not be covered by the ADA since ADA excludes from coverage owner-occupied establishments renting five or fewer rooms. Generally, places of lodging, such as hotels, motels, and inns, are public accommodations under the ADA.
The Good News Community Hospital is a 300-bed facility. Is the hospital covered by the ADA?
Yes. The ADA contains a list of 12 categories of places of public accommodation, which illustrate the wide scope of the law's coverage. If the entity falls within one of the 12 listed categories and is privately owned or operated, it is covered as a place of public accommodation by the ADA. Places such as private hospitals, nursing homes, day-care centers, ambulatory treatment or diagnostic centers, and professional offices of health care providers are all places of public accommodation covered by the ADA.
Also covered are lawyers' offices, insurance offices, health spas, auditoriums, stadiums, and lecture halls. As a rule, an establishment is covered by Title III if it is privately owned or operated and is a place in which consumers transact business or visit for recreational health, or educational purposes. In addition, publicly owned or operated facilities such as hospitals would be subject to similar ADA requirements under Title II.
Rose, who is visually impaired, is a member of the Good News Community Church. Must the church provide her with a hymnal in large print?
No. Churches and other religious organizations are exempt from the provisions of Title III. A religious entity, however, is subject to the employment obligations contained in Title I if it has enough employees to meet the requirements for Title I coverage. If a church or religious organization rents space to a private day-care center, the religious entity remains exempt from Title III, but the day-care center would be covered as a place of public accommodation.
Exclusive, private clubs are also exempt from Title III coverage, unless they rent space to a place of public accommodation or allow the public use of any of their facilities. Unlike churches or other religious organizations, private clubs that rent space to places of public accommodation do assume Title III obligations with respect to the portion of the facilities that is rented out or used as a place of public accommodation. If a club occasionally opens its entire facility for a public event such as a golf tournament, all of the facility used for the event becomes a place of public accommodation for that event.
The Acme Wholesale Plumbing Supply Company maintains its corporate office in the High Rent Office Tower. Is Acme a place of public accommodation covered by Title III?
No. An office is a public accommodation only if it fits within the 12 specific categories of public accommodations set forth in the ADA. In the case of Acme, it does not fall into any of the 12 categories of public accommodations listed in Title III. In addition, Acme is not open to consumers and therefore is not a place of public accommodation.
However, lawyers' offices, doctors' offices, and offices of other health care providers located in the High Rent Office Tower are clearly places of public accommodation, as defined by the ADA. As such, they must provide auxiliary aids or services, unless doing so would result in a fundamental alteration or an undue burden, and must further remove architectural and structural communication barriers if readily achievable to do so. The Acme Wholesale Plumbing Supply Company would be considered a commercial facility under the ADA. An office is a commercial facility if it is in a nonresidential facility that affects commerce. This is a very broad category that encompasses virtually all businesses of any kind.
The distinction between public accommodations and commercial facilities is important because public accommodations are subject to all of the requirements of Title III, whereas commercial facilities are only subject to the alteration and new construction requirements. When the High Rent Office Tower alters its building, it must remove structural communication barriers by incorporating accessible features (such as accessible interior signage) in accordance with ADAAG requirements.
In addition, if a place of public accommodation occupies leased space in an office building, both the landlord and the tenant are responsible to ensure that a blind, deaf-blind, or visually impaired person has full access to the services of the health care provider. As between the tenant and the landlord, the parties may allocate this responsibility in their lease agreement. For example, the landlord may assume responsibility for the lobby, elevators, and other common areas in the office building, while the tenant may assume responsibility for access within his or her suite.
Mary is a parent who is blind. Her 10-year-old daughter, Laurie, has just been taken to the Good News Community Hospital emergency room for treatment. Is the hospital obligated to assist Mary in completing the consent and other forms associated with her child's admission?
Yes. In this scenario, if Mary must give informed consent for Laurie's treatment, contents of the consent form must be effectively communicated to her. In most cases, this can be accomplished by having hospital staff read the consent form or by providing the form in braille or on audiocassette. If the form is read aloud, the hospital should take steps to ensure that this is done in an area where privacy and confidentiality can be maintained.
Barbara, who is deaf-blind, calls to make an appointment with Dr. Goodhealth and asks him to arrange to have an interpreter present during the appointment. Must the doctor provide an interpreter?
Perhaps. Providing an interpreter is an example of an auxiliary aid or service. Dr. Goodhealth must ensure effective communication. Important factors in determining whether different auxiliary aids and services are effective are the complexity and length of the information to be transmitted. There may be other means of providing effective communication that the doctor prefers (such as using a teletouch, Brailtalk, or telebraille device). If it is necessary for effective communication to provide an interpreter, one must be provided, unless the doctor can demonstrate that doing so would be an undue burden, i.e., a significant difficulty or expense. To determine if something is an undue burden, one looks to the cost of the auxiliary aid or service in relation to all resources available to the doctor, not just what the doctor is paid for the deaf-blind person's appointment. The unavailability of a tactile interpreter in some parts of the country could also be considered in assessing undue burden. In many cases and localities, however, providing an interpreter is not an undue burden for a doctor. If it is determined that providing a particular auxiliary aid or service is an undue burden, the doctor must still provide another aid or service or pay for the portion of the auxiliary aid or service that does not pose an undue burden. In this case, if the purpose of the appointment is to discuss Barbara's need for surgery, an interpreter will almost certainly be required if it is not an undue burden, unless some other effective means of communication between Barbara and Dr. Goodhealth is available.
Weighty Volumes, a local book store, customarily carries only regular print versions of books. Peter is losing his vision. Must Weighty Volumes stock large-print or cassette books?
No. The ADA does not require the bookstore to expand its inventory to include large-print books or books on audiotape. On the other hand, a public accommodation may be required to special order accessible goods at the request of a customer with a disability if:
It makes special orders for unstocked goods in its regular course of business and
The accessible or special goods requested can be obtained from one of its regular suppliers.
Thus, on Peter's request, the book store may be required to special order large-print books if the above requirements are satisfied.
Sarah, who is visually impaired, needs assistance in locating and removing an item from a grocery store shelf. She also needs help reading price tag information. Does the ADA cover this kind of assistance?
A store employee who locates the desired item for Sarah would be providing an auxiliary aid or service. Of course, if Sarah is unreasonably demanding or is shopping when the store is extremely busy, it may be an undue burden to spend extended periods of time reading price and product information.
The Textile Arts Museum does not allow visitors to touch exhibits because handling some objects can result in damage. The museum offers a special tour for persons who are blind during which certain objects can be touched on a limited basis. Does this special tour violate the ADA?
No. A public accommodation may offer separate or special programs necessary to provide individuals with disabilities an equal opportunity to benefit from their programs. However, such programs must be specifically designed to meet the needs of the individuals with disabilities for whom they are provided. The museum cannot exclude a person who is blind from the standard museum tour. Individuals with disabilities are entitled to participate in regular programs, even if the public accommodation could reasonably believe that they cannot benefit from the regular program. A public accommodation cannot force an individual with a disability to accept an accommodation, aid, or service that he or she does not want.
Jack, who is a dog guide user, and his brother Mark want to see the latest Tom Cruise movie at the First Run Theater. The theater refuses to admit Jack with his dog guide. Has the ADA been violated?
The First Run Theater has violated the ADA. First, places of public accommodation are required to modify their policies to permit the use of a service animal by an individual with a disability, unless so doing results in a fundamental alteration or jeopardizes safe operation of the public accommodation. Since John's dog is presumably well-trained and is kept under control by his master, the theater will not be able to deny John admission with his dog guide. In addition, Mark, who is sighted, also has a claim of discrimination under the ADA against the theater, based upon his association with John. In addition to familial relationships, the prohibition against discrimination because of association with an individual who has a disability covers any type of association.
The Blue Plate restaurant has an unofficial policy of seating customers who are deaf-blind in a separate dining room because the management fears that other customers will be uncomfortable if such individuals are seated in the restaurant's main dining room. Has the ADA been violated?
Yes. The Blue Plate's policy violates the ADA because it establishes an eligibility criterion that discriminates against individuals with certain disabilities and that is not necessary for the operation of the restaurant. The restaurant may not justify its policy on the basis of the preferences of its other customers.
The Queen of the Caribbean, a cruise ship subject to the ADA, discovers that Marilyn, who is totally blind, has made a reservation and plans to travel independently. The Sailaway Cruise Ship Line advises Marilyn that, for liability reasons, she must bring a sighted traveling companion with her. Has the ADA been violated?
Yes. Requiring a traveling companion as an eligibility criterion violates the ADA, unless the cruise line demonstrates that its policy is necessary for some compelling reason.
The Sleepy Hollow Summer Camp, a private facility, requires parents of children to fill out a questionnaire and to submit medical documentation regarding their children's ability to participate in various camp activities. Is such a requirement lawful under the ADA?
Yes. The questionnaire is acceptable if the summer camp can demonstrate that each piece of information requested is needed to ensure safe participation in camp activities. The camp, however, may not use this information to screen out children with disabilities (including children who are blind, deaf-blind, or visually impaired) from admittance to the camp. In addition, the camp may not make any additional charge for accommodations, aids, or services that the camp might be required to provide to the child with a disability.
Jim, who is deaf-blind, initially visits a doctor who specializes in family medicine. The doctor discovers that Jim has a potentially cancerous growth. May the doctor refuse to treat Jim?
No. A doctor cannot refuse to treat him based upon his deaf-blindness. However, if Jim has a condition that the doctor does not have expertise to treat, he can be referred to a specialist. The cancer specialist who receives the referral may not refuse to treat Jim for cancer-related problems simply because of his disability or because the physician is unwilling to pay for a qualified interpreter.
Mary is a visually impaired person. She enjoys piano bars, and has asked the proprietor of the Steinway Getaway to raise the lighting in the bar so that she can read the cocktail menu. Must the bar owner provide this accommodation?
Probably not. The issue posed by this question is whether raising the lighting in the bar would pose an undue burden or would fundamentally alter the activities conducted there. If low lighting is part of the ambience of the establishment, raising the illumination level probably would constitute a "fundamental alteration" and would not be required. The bar owner would, however, be required to have a server read the menu to Mary and would also be required to provide her with a choice of seating where the lighting might be more adequate for her needs.
The Gotham Opera Company, a touring opera troupe, is renting space at a private performing arts center for three weeks. An individual who is blind calls the center and finds that no provision has been made for audio description or a braille or large-print program because the troupe's budget is too small. Has the ADA been violated?
Probably. As a place of entertainment or public gathering, the private performing arts center is a public accommodation. Further, the opera troupe is also a public accommodation for the duration of the lease with the performing arts center, because it is leasing a place of public accommodation. Both of these public accommodations have the ultimate responsibility to provide auxiliary aids and services, such as programs in large print or braille and audio description, unless it is an undue burden to do so.
An important question is whether the opera company or the performing arts center must provide the auxiliary aid. Although both the arts center and the troupe remain obligated to provide the audio description or braille or large-print program to the operagoer who is blind, a lease or other contract may allocate responsibility between the two parties. In this scenario, the arts center would be required to supply the braille or large-print program, even if the lease with the troupe contained a provision requiring the troupe to provide this service. Depending upon the lease provisions, the arts center could recover damages against the troupe for its failure to perform under the lease. Note that if the space were donated to the opera troupe, the troupe would not be liable to provide audio description or a braille or large-print program, because in this case, it is not a public accommodation within the meaning of the ADA.
The Numismatic Society of East Hardwicke sponsors a course on rare foreign coins in preparation for a foreign currency exchange licensing examination. A visually impaired person wants to take the course and requests handouts in large print, but the society refuses. Has it violated the ADA?
The Numismatic Society may have violated the ADA, because the course is being offered in relation to a trade license. In such situations, auxiliary aids and services, such as large-print handouts must be provided if it is not an undue burden to do so. In addition, examinations of a licensing authority must be given in an accessible manner, which can mean the provision of readers or of braille, taped, or large-print materials.
Section IV: Filing Complaints and Remedies for Violation of the ADA
How does a person who is blind, deaf-blind, or visually impaired file a complaint against a state or local government under Title II?
Title II requires local governments with 50 or more employees to have a grievance procedure to resolve Title II complaints. In addition, individuals may file complaints with the U.S. Department of Justice or with one of eight other designated federal agencies responsible for enforcing different subject areas of Title II. Individuals may also bring a lawsuit in federal court. Damages are limited to injunctive relief, but a recent United States Supreme Court case may be interpreted by the courts to permit compensatory damages in cases of intentional discrimination. Attorney's fees and court costs may be awarded to the prevailing party at the court's discretion.
How does a person who is blind, deaf-blind, or visually impaired file a complaint against a place of public accommodation under Title III?
An individual may file a lawsuit to get a court order to stop discrimination. Lawsuits are limited to "preventive" relief. No money damages are available, but a reasonable attorney's fee may be awarded. To give them some time to come into compliance, certain small businesses (those with 10 or fewer employees and gross receipts of $500,000 or less) may not be sued until after January 26, 1993.
Individuals may also file complaints with the Attorney General, U.S. Department of Justice, asking the Attorney General to investigate the complaint. The Attorney General is authorized to investigate complaints and to bring lawsuits in cases of general public importance or when there is a "pattern or practice" of discrimination. In suits brought by the Attorney General, money damages and civil penalties may be awarded (but not punitive damages). Civil penalties may not exceed $50,000 for a first violation or $100,000 for any later violation. Attorney's fees and court costs may be awarded within the discretion of the court. As always, state law should be consulted to determine the availability of other or more generous remedies.
The ADA does recognize that alternative dispute resolution techniques (including arbitration or mediation) can be an effective way of resolving disputes concerning the provision of auxiliary aids or services. Utilizing these techniques is very important and will be advantageous to both sides in helping to resolve ADA complaints with minimal cost and delay.
As a person who is visually impaired and familiar with the ADA, how can I assist public accommodations or state and local governments to comply with the ADA voluntarily?
State and local governments under Title II are required to conduct self-evaluations to determine whether all of their programs or activities comply with the ADA. However, the law does not require places of public accommodation to conduct self-evaluations or to develop barrier removal plans. In any event, a self-evaluation and a barrier removal plan are the easiest ways to determine how accessible a place of public accommodation is now and the progress which needs to be made in the future. You can assist a place of public accommodation conduct a self-evaluation.
In addition to this document, two accessibility checklists targeted to the hotel industry and the health care industry have been developed to help you identify barriers and arrive at solutions of particular concern to persons who are blind, deaf-blind, or visually impaired. The process begins by identifying barriers to access within each function or department of government or a private business covered by Title III. Determine how the barrier is currently being addressed, if at all, and then identify the range of solutions available which will eliminate or minimize the barrier. Is the current response to the barrier adequate, or must the covered entity do more? Which solutions to removing the barrier are effective, least expensive, or easiest to implement? The ADA permits a state or local government or place of public accommodation to choose among competing methods of barrier removal, as long as the method chosen is effective. The least expensive solution, as long as it is effective, is perfectly okay.
Once barriers are identified and solutions determined, a plan for ADA implementation should be developed. If time frames are reasonable and solutions effective, a good faith effort to comply with the ADA will be an important favorable factor in any proceeding to adjudicate a complaint under the ADA.
As a person who is blind and who is familiar with ADA requirements, you can help covered entities to comply with the ADA by showing them how to identify barriers and arrive at cost effective solutions to those barriers. If you want to get involved, a good place to start is one of the organizations or federal departments or agencies shown in the resource list.
Resources
Government Agencies
You can obtain further information, copies of the ADA regulations, and technical assistance manuals from the following government departments or agencies:
Title I (Employment)
Equal Employment Opportunity Commission
1801 L Street, N.W.
Washington, DC 20507
800-669-EEOC; 202-663-4399 (TDD)
Web site: http://www.eeoc.gov/facts/howtofil.html
Title II (State and Local Governments); Title III (Public Accommodations)
Civil Rights Division
Disability Rights Section
U.S. Department of Justice
P.O. Box 66738
Washington, DC 20035-9998
202-514-0301; 202-514-0383 (TDD)
Web site: http://www.usdoj.gov/crt/ada/adahom1.htm
Title II/Title III (Transportation)
U. S. Department of Transportation
400 Seventh Street, S.W., #10424
Washington, DC 20590
202-366-9306; 202-755-7687 (TDD)
Advocacy Organizations
You can obtain further information about accommodations for people who are blind, deaf-blind, or visually impaired from the following organizations:
American Association of the Deaf-Blind
8630 Fenton Street, Suite 121
Silver Spring, Maryland 20910-3803
TTY Phone: (301) 495-4402; Voice Phone: (301) 495-4403
Fax: (301) 495-4404
Email: AADB-Info@aadb.org
Web site:
http://www.aadb.org/
American Council of the Blind
1155 15th Street, N.W., Suite 1004
Washington, DC 20005
202-467-5081 (Voice)
E-mail: info@acb.org
Web site: http://www.acb.org
American Foundation for the Blind
Governmental Relations Group
820 First Street, N.E., Suite 400
Washington, DC 20002
202-408-0200 (Voice)
E-mail: afbgov@afb.net
Web site: AFB's Governmental and Advocacy Activities
Council of Citizens with Low Vision International
An Affiliate of the
American Council of the Blind
1155 15th Street NW, Suite 1004
Washington, DC 20005
800-733-2258
Web site: http://www.cclvi.org
National Federation of the Blind
1800 Johnson Street
Baltimore, MD 21230
410-659-9314 (Voice)
Web site: http://www.nfb.org
This document provides general information to promote voluntary compliance with the Americans with Disabilities Act (ADA). It was prepared under a grant from the U.S. Department of Justice. While the Department's Public Access Section has reviewed its contents, any opinions or interpretations in this document are those of the American Foundation for the Blind and do not necessarily reflect the views of the Department of Justice. The ADA itself and the Department's ADA regulations should be consulted for further, more specific guidance.
The Americans with Disabilities Act Communications Accommodations Project was a joint program of the American Foundation for the Blind and the National Center for Law and Deafness.
Resource section updated by the American Foundation for the Blind
May 2006
