ADA TITLE III OUTLINE (begins on next page)
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I.
Overview of the ADA—The ADA forbids discrimination against people with disabilities
in major areas of public life, including employment (Title I), public services (Title II), and public
accommodations (Title III). PGA Tour, Inc. v. Martin, 532 U.S. 661, 675 (2001).
II.
Overview of ADA Title III—Title III of the ADA prohibits discrimination against people
with disabilities in the full and equal enjoyment of public accommodations, 42 U.S.C. §
12182(a), and public transportation services, § 12184(a). Spector v. Norwegian Cruise Line Ltd.,
545 U.S. 119, 128 (2005).1
III.
Source of Title III Law
A.
Statute: 42 U.S.C. §§ 12181–12189.
B.
Regulations: 28 C.F.R. Part 36. Title III regulations “are given controlling weight
unless they are arbitrary, capricious, or manifestly contrary to the statute.” Johnson v.
Gambrinus Company/Spoetzl Brewery, 116 F.3d 1052, 1060 (5th Cir. 1997).
C.
DOJ Guidance: includes 28 C.F.R. Part 36 App. B (issued with the Title III
regulations), and the Technical Assistance Manual and Supplement.2 Such guidance is
entitled to deference because the Department of Justice was delegated the duty “to render
technical assistance explaining the responsibilities of covered individuals and
institutions.” Sapp v. MHI Partnership, Ltd., 199 F. Supp. 2d 578, 586 (N.D. Tex. 2002)
(relying on Title III Technical Assistance Manual), quoting Bragdon v. Abbott, 524 U.S.
624, 646 (1998); No Barriers, Inc. v. BRH Texas GP, L.L.C., 2001 WL 896924, at *3
(N.D. Tex. Aug. 2, 2001) (similar).
IV.
Rules of Interpretation
A.
The ADA is to be broadly interpreted to accomplish its remedial purposes.
Spector v. Norwegian Cruise Line Ltd., 545 U.S. 119, 132 (2005); id. at 145 (J. Ginsburg,
concurring in part); PGA Tour, Inc. v. Martin, 532 U.S. 661, 675 (2001) (“In the ADA,
Congress provided that broad mandate. In fact, one of the Act’s ‘most impressive
strengths’ has been identified as its ‘comprehensive character,’ and accordingly the Act
has been described as ‘a milestone on the path to a more decent, tolerant, progressive
society.’”) (citations omitted).
B.
ADA may not be interpreted to apply a lesser standard than that in § 504 of the
Rehabilitation Act of 1973 (29 U.S.C. § 794). 42 U.S.C. § 12201; 28 C.F.R. § 36.103(c).
The standards under § 504 apply unless otherwise specified. 28 C.F.R. Part 36 App. B, §
36.103.
V.
Disability
1 Note that the transportation provisions of Title III are beyond the scope of this paper.
2 These guidance documents are online, linked to http://askjan.org/links/adalinks.htm#iii.
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A.
Definitions: 42 U.S.C. § 12102, as amended.
B.
Note that the assessment of disability has been substantially modified by the ADA
Amendments Act of 2008, Pub. L. 110-325, 122 Stat. 3555 (Sept. 25, 2008), eff. 1/1/09.
See, e.g., “Employment Discrimination Cases After the ADA Amendments Act,” MCLE
901195740 (SBOT Webcast Mar. 2010).
VI.
Businesses covered
A.
Public Accommodations
1.
Public accommodations are defined through a list of twelve types of
entities, which include: most places of temporary lodging, establishments serving
food or drink, places of exhibition or entertainment, places of public gathering,
sales or rental establishment, service establishment, certain public transportation
stations, places of public display or collection, places of recreation, places of
education, social service center establishments, and places of exercise or
recreation. 42 U.S.C. §12181(7); 28 C.F.R. §36.104.
2.
The statutory list gives lots of specific examples of the above entities.
These examples are not exclusive, although the categories listed above are. 28
C.F.R. Part 36 App. B, § 36.104.
3.
Coverage is intended to be broad. PGA Tour, Inc. v. Martin, 532 U.S. 661,
676–677 (2001); Betancourt v. Federated Dept. Stores, 732 F. Supp. 2d 693, 701
(W.D. Tex. 2010). See also Spector v. Norwegian Cruise Line Ltd., 545 U.S. 119,
129 (2005) (“Although the statutory definitions of ‘public accommodation’ … do
not expressly mention cruise ships, there can be no serious doubt that the NCL
cruise ships in question fall within both definitions under conventional principles
of interpretation.”).
4.
Must “affect commerce.” Commerce is broadly defined at 42 U.S.C.
§12181(1). For example, a facility open to out-of-state visitors “affects
commerce.” Technical Assistance Manual § III-1.2000(A) (1994 Supp.).
5.
Includes entities that own, lease, lease to, or operate a public
accommodation. 28 C.F.R. § 36.104.
6.
Both the landlord and the tenant that operates a place of public
accommodation are subject to Title III. 28 C.F.R. § 36.201(b); 28 C.F.R. Part 36
App. B, § 36.201; Technical Assistance Manual § III-1.2000. And the lessee may
be covered even if lessor is exempt, it has paid consideration (i.e., not using
donated space). 28 C.F.R. Part 36 App. B, § 36.104.
7.
Franchisor liability—a franchisor can be held liable under Title III if it
“operates” a place of public accommodation. In the context of architectural
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barriers, courts have held that the relevant inquiry is whether the franchisor
“specifically controls the modification of the franchises to improve their
accessibility to the disabled.” Cortez v. National Basketball Ass'n, 960 F. Supp.
113 (W.D. Tex. 1997), citing Neff v. American Dairy Queen Corp., 58 F.3d 1063
(5th Cir. 1995); Alonzo v. Mr. Gatti’s Pizza, Inc., 933 S.W.2d 294 (Tex. App.–
Corpus Christi 1996, no writ).
8.
The courts are divided on whether architects or engineers who fail to
design in compliance with the ADA are liable to the person with a disability. See
Whitaker v. West Village Ltd. Partnership, 2004 WL 1778963, at *2–3 (N.D. Tex.
Aug. 4, 2004) (siding with courts finding no such liability).
B.
Commercial Facilities
1.
All commercial facilities are covered, but only as to the requirements for
new construction and alterations. 42 U.S.C. §12183(a); 28 C.F.R. § 36.102(c);
Technical Assistance Manual § III-1.1000.
2.
Commercial facilities are defined as those facilities intended for
nonresidential use whose operations affect commerce (but excluding certain rail
facilities). 42 U.S.C. § 12181(2); 28 C.F.R. § 36.104.
C.
Examinations or Course—entities offering such exams or courses are subject to
Title III. 28 C.F.R. §§ 36.102(d) and 36.309.
D.
Any person or entity may be sued for retaliation or coercion. 28 C.F.R. § 36.206;
28 C.F.R. Part 36 App. B, §§ 36.102 and 36.206; Technical Assistance Manual § III3.6000.
E.
Title III does not apply to:
1.
Private clubs, 42 U.S.C. §12187; 28 C.F.R. § 36.102(e), which are defined
at 28 C.F.R. § 36.104 and 28 C.F.R. Part 36 App. B, § 36.104.
2.
Religious organizations or entities controlled by religious organizations,
including places of worship. 42 U.S.C. §12187, 28 C.F.R. § 36.102(e); 28 C.F.R.
Part 36 App. B, § 36.104 (exemption is broad); Technical Assistance Manual §
III-1.5000.
3.
Governmental entities. 42 U.S.C. § 12187; 28 C.F.R. §§ 36.102(e) and
36.104; Bloom v. Bexar County, Tex., 130 F.3d 722, 726–727 (5th Cir. 1997). But
lessees of government buildings may be covered. Technical Assistance Manual §
III-1.2000(B) (1994 Supp.).
Notre, however, that the guidance issued with the latest amendments to the Title
II regulations clarify that the Title III provisions regarding examinations and
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courses also apply to public entities that offer them. See 75 Fed. Reg. 56164,
56236 (Sept. 15, 2010). Compare Simmang v. Texas Bd. of Law Examiners, 346
F. Supp. 2d 874, 884 n.8 (W.D. Tex. 2004).
4.
Those exempted by Title II of 1964 Civil Rights Act (42 U.S.C.
§2000a(e)). 42 U.S.C. § 12187.
5.
Residences. Although homes, condos, and apartments are generally not
covered, 28 C.F.R. Part 36 App. B, §§ 36.104 and 36.207,3 the law does apply to:
a)
Places of public accommodations within residential facilities. 28
C.F.R. Part 36 App. B, § 36.104; Technical Assistance Manual § III1.2000. See also 28 C.F.R. § 36.401(b) (regarding new construction).
Thus, for example, leasing offices in apartment houses are covered.
Technical Assistance Manual § III-1.2000; No Barriers, Inc. v. BRH Texas
GP, L.L.C., 2001 WL 896924 (N.D. Tex. Aug. 2, 2001). Similarly, sales
offices located in model homes are covered. 28 C.F.R. Part 36 App. B, §
36.104; Sapp v. MHI Partnership, Ltd., 199 F. Supp. 2d 578, 584–587
(N.D. Tex. 2002). This could also include the common areas of a
residential complex if use of the areas is not limited exclusively to owners,
residents, and their guests. Technical Assistance Manual § III-1.2000.
b)
Places of public accommodation located in a private residences. 28
C.F.R. § 36.207; 28 C.F.R. Part 36 App. B, §§ 36.104 and 36.207.
c)
Certain group homes. 42 U.S.C. § 12181(7)(A); Technical
Assistance Manual § III-1.2000(C) (1994 Supp.).
Places of lodging have always been covered, 42 U.S.C. § 12181(7)(A), but
the latest amendments to the Title III regulations clarify that effective
3/15/2012, college dorms, shelters, and some timeshares and
condominiums that operate like hotels are subject to many Title III
obligations. See 28 C.F.R. §§ 36.104, 36.302(e), and 36.406(c), as
amended, 75 Fed. Reg. 56236, 56250, 56251–56252, 56256–56257,
56263, 56306–56308 (Sept. 15, 2010).
F.
Individual liability—Individuals may be liable if they are the owner, lessor/lessee,
or operator of a public accommodation. 42 U.S.C. § 12182(a); 28 C.F.R. Part 36 App. B,
§ 36.104.
VII.
Discrimination
A.
General rule.
3 Note, however, that private residences may be covered under the Fair Housing Amendments Act of 1988, 42 U.S.C. §3604.
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1.
“No individual shall be discriminated against on the basis of disability in
the full and equal enjoyment of the goods, services, facilities, privileges,
advantages, or accommodations of any place of public accommodation by any
person who owns, leases (or leases to), or operates a place of public
accommodation.” 42 U.S.C. § 12182(a); 28 C.F.R. § 36.201(a); Griffin v. Public
Access Community Television, 2010 WL 3815797, at *1 (W.D. Tex. Sept. 27,
2010).
2.
The elements of a claim under this provision are: (1) the plaintiff has a
disability; (2) the place that the defendant owns, leases, or operates is a place of
public accommodation; and (3) plaintiff was denied full and equal enjoyment
because of his/her disability. Griffin v. Public Access Community Television, 2010
WL 3815797, at *1 (W.D. Tex. Sept. 27, 2010); MacClymonds v. IMI
Investments, Inc., 2007 WL 1306803, at *3 (S.D. Tex. Apr. 5, 2007).
B.
General prohibitions
1.
Denial of participation—cannot deny opportunity to participate in or
benefit from the goods, services, facilities, privileges, advantages, or
accommodations. 42 U.S.C. § 12182(b)(1)(A)(i); 28 C.F.R. § 36.202(a).
2.
Unequal benefit—cannot offer participation in or benefit from a good,
service, facility, privilege, advantage, or accommodation that is not equal to that
afforded others. 42 U.S.C. § 12182(b)(1)(A)(ii); 28 C.F.R. § 36.202(b).
3.
Separate benefit—cannot provide good, service, facility, privilege,
advantage, or accommodation that is different or separate from that provided to
others, unless necessary to provide something as effective as that provided others.
42 U.S.C. § 12182(b)(1)(A)(iii); 28 C.F.R. § 36.202(c).
4.
Note that the above three prohibitions cannot be cannot be avoided by
means of contract, but on the other hand, contractual relationships will not expand
a public accommodation’s obligations beyond its own clients or customers. 42
U.S.C. § 12182(b)(1)(A)(iv); 28 C.F.R. § 36.202(d); PGA Tour, Inc. v. Martin,
532 U.S. 661, 679 (2001).
C.
General obligations
1.
Integrated settings—goods, services, facilities, privileges, advantages, and
accommodations shall be afforded to an individual with a disability in the most
integrated setting appropriate to the needs of the individual. 42 U.S.C.
§12182(b)(1)(B); 28 C.F.R. §36.203(a).
2.
Opportunity to participate—notwithstanding the existence of separate or
different programs or activities provided in accordance with this section, an
individual with a disability shall not be denied the opportunity to participate in
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such programs or activities that are not separate or different. 42 U.S.C.
§12182(b)(1)(C); 28 C.F.R. §36.203(b).
3.
Administrative methods—an individual or entity shall not, directly or
through contractual or other arrangements, utilize standards or criteria or methods
of administration that (a) have the effect of discriminating on the basis of
disability; or (b) perpetuate the discrimination of others who are subject to
common administrative control. 42 U.S.C. §12182(b)(1)(D); 28 C.F.R. §36.204.
4.
Association—it shall be discriminatory to exclude or otherwise deny equal
goods, services, facilities, privileges, advantages, accommodations, or other
opportunities to an individual or entity because of the known disability of an
individual with whom the individual or entity is known to have a relationship or
association. 42 U.S.C. §12182(b)(1)(E); 28 C.F.R. §36.205.
D.
Specific Prohibitions—The above general prohibitions are supplemented by
various, more specific requirements. Spector v. Norwegian Cruise Line Ltd., 545 U.S.
119, 128 (2005). See also Betancourt v. Federated Dept. Stores, 732 F. Supp. 2d 693,
700–701 (W.D. Tex. 2010). These specific provisions (listed below) control over general
provisions where both apply, 28 C.F.R. § 36.213, as do the specific defenses described in
them. 28 C.F.R. Part 36 App. B, § 36.202.
1.
Eligibility Criteria.
a)
Title III prohibits eligibility criteria that screen out, or tend to
screen out, people with disabilities from full and equal enjoyment. 42
U.S.C. §12182(b)(2)(A)(i); 28 C.F.R. 36.301(a).
b)
Examples—this section prohibits
(1)
Unnecessary inquiries regarding disabilities. 28 C.F.R. Part
36 App. B, § 36.301; Technical Assistance Manual § III-4.1300.
(2)
Surcharges. 28 C.F.R. 36.301(c); 28 C.F.R. Part 36 App.
B, § 36.301; Technical Assistance Manual § III-4.1300–4.1400.
(3)
Reliance on “customer preference.” 28 C.F.R. Part 36 App.
B, § 36.301; Technical Assistance Manual § III-4.1100.
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c)
Exceptions—such criteria are permitted if they are necessary for
the provision of the goods, services, facilities, privileges, advantages,
accommodations being offered, 42 U.S.C. § 12182(b)(2)(A)(i); 28 C.F.R.
§ 36.301(a), or are legitimate safety requirements necessary for safe
operation, based on actual (not speculative) risk. 28 C.F.R. § 36.301(b).
2.
Failure to Make Reasonable Modifications.
a)
Title III prohibits the failure to make reasonable modifications in
policies, practices and procedures necessary for persons with disabilities.
42 U.S.C. §12182(b)(2)(A)(ii); 28 C.F.R. § 36.302.
b)
There are specific provisions relating to service animals, 28 C.F.R.
36.302(c); Pena v. Bexar County, Texas, 726 F. Supp. 2d 675, 684 (W.D.
Tex. 2010).
The latest amendments to the Title III regulations, effective 3/15/2011,
clarify various things about the definition and use of service animals,
including limiting the statutory protection to dogs and (with some
restrictions) miniature horses. The definition includes psychiatric service
animals, but excludes comfort animals. See 28 C.F.R. §§ 36.104 and
36.302(c), as amended, 75 Fed. Reg. 56236, 56250, 56251, 56265–56269
(Sept. 15, 2010).
c)
There are specific provisions relating to checkout aisles. 28 C.F.R.
36.302(d).
The latest amendments to the Title III regulations clarify the rules on the
sale of tickets for accessible seating, effective 3/15/2011. See 28 C.F.R. §
36.302(f), as amended, 75 Fed. Reg. 56236, 56252–56253, 56275–56280
(Sept. 15, 2010).
The latest amendments also clarify the procedures for reserving accessible
rooms in places of lodging; limits the obligations of third-party reservation
operators that do not themselves own and operate places of lodging; and
gives places of lodging until 3/15/2012 to comply with these requirements.
See 28 C.F.R. § 36.302(e), as amended, 75 Fed. Reg. 56236, 56251–
56252, 56273–56275 (Sept. 15, 2010).
d)
Defenses—policies need not be modified if doing so would
fundamentally alter the nature of the goods, services, facilities, privileges,
advantages, or accommodations. 42 U.S.C. §12182(b)(2)(A)(ii); 28 C.F.R.
§ 36.302(a). See PGA Tour, Inc. v. Martin, 532 U.S. 661, 682 et seq.
(2001) (finding use of golf cart did not fundamentally alter professional
golf); Emery v. Caravan of Dreams, Inc., 879 F. Supp. 640, 644 (N.D.
8
Tex. 1995) (no-smoking policy would fundamentally alter nightclub’s
services); Lewis v. Dallas Soundstage, Inc., 167 S.W.3d 906, 914–915
(Tex. App.–Dallas 2005, no pet.) (moving studio tour to first floor would
be fundamental alteration). Note, too, that the policy-modification
provision does not prevent a medical provider from refusing to provide
services outside provider’s area of specialization, if the defendant would
normally refer such a person to another. 28 C.F.R. § 36.302(b).
e)
Burdens of proof—per Johnson v. Gambrinus Company/Spoetzl
Brewery, 116 F.3d 1052, 1059–1060 (5th Cir. 1997), the plaintiff must
first show that a modification was requested and that the requested
modification is reasonable in the general sense, i.e., in the run of cases. If
the plaintiff meets this burden, the defendant must make the requested
modification unless the defendant pleads and proves that the requested
modification would fundamentally alter the nature of the public
accommodation, focusing on the specifics of the parties’ circumstances
(rather than on the general nature of the accommodation). Note that
modifying a “no animals” policy to allow full access for a service animal
is generally reasonable. Pena v. Bexar County, Texas, 726 F. Supp. 2d
675, 684 (W.D. Tex. 2010), citing Johnson v. Gambrinus Co./Spoetzl
Brewery.
f)
Note that Title III does not require a business to alter or modify the
actual products that it offers for sale. See, e.g., McNeil v. Time Insurance
Co., 205 F.3d 179, 188 (5th Cir. 2000); Sapp v. MHI Partnership, Ltd.,
199 F. Supp. 2d 578, 585 (N.D. Tex. 2002); Dehoyos v. Allstate Corp.,
2002 WL 1491650, at *4 (W.D. Tex. Apr. 5, 2002).
3.
Auxiliary aids and services
a)
Title III requires provision of auxiliary aids and services if
necessary to ensure that a person with a disability is not excluded, denied
services, segregated, or treated differently. 42 U.S.C. §
12182(b)(2)(A)(iii); 28 C.F.R. §36.303(a).
b)
This provision also requires that public accommodations furnish
appropriate auxiliary aids and services where necessary to ensure effective
communication with individuals with disabilities. 28 C.F.R. 36.303(c); 28
C.F.R. Part 36 App. B, § 36.303; Technical Assistance Manual § III4.3200.
c)
Auxiliary aids and services include, but are not limited to qualified
interpreters, notetakers, computer-aided transcription services, written
materials, telephone handset amplifiers, assistive listening devices or
systems, telephones compatible with hearing aids, closed caption
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decoders, open and closed captioning, TDDs, videotext displays, qualified
readers, taped texts, audio recordings, Brailled materials, large print
materials, acquisition or modification of equipment or devices, other
similar services and actions. 42 U.S.C. § 12103(1); 28 C.F.R. §36.303(b),
(d), and (e); Betancourt v. Federated Dept. Stores, 732 F. Supp. 2d 693,
711 (W.D. Tex. 2010. See also 28 CF.R. Part 36 App. B, § 36.303.
Effective 3/15/2011 the latest amendments to the Title III regulations
clarify certain provisions regarding phone service, readers, and
interpreters; list additional auxiliary aids and services, including video
remote interpreting (VRI) and screen-reader software; and establish
performance and training standards for VRI. See 28 C.F.R. §§ 36.104 and
36.303(b), (c), (d), and (f), as amended, 75 Fed. Reg. 56236, 56250–
56251, 56253–56254, 56280–56287 (Sept. 15, 2010).
d)
The plaintiff should be consulted as to the choice of aid or service,
although that choice is not binding. 28 C.F.R. Part 36 App. B, § 36.303;
Technical Assistance Manual § III-4.3200.
e)
Defenses—these aids and services are not required if they would
result in a fundamental alteration or an undue burden. 42 U.S.C. §
12182(b)(2)(A)(iii); 28 C.F.R. §36.303(a). Fundamental alteration is not
specifically defined, but undue burden means significant difficulty or
expense. 28 C.F.R. §§ 36.104 and 36.303(a); 28 C.F.R. Part 36 App. B, §§
36.104 and 36.303. See also Todd v. American Multi-Cinema, Inc., 2004
WL 1764686, at *3–4 (S.D. Tex. Aug. 5, 2004) (equipment costing tens of
millions of dollars, exceeding defendants’ capital, was undue burden).
Factors used in assessing undue burden are listed in 28 C.F.R. § 36.104.
As to financial considerations, accessibility tax advantages should be
considered.4 Even if a defense is established, the defendant must still
provide alternatives that ensure accessibility and equality to the maximum
possible extent. 28 C.F.R. § 36.303(f); 28 C.F.R. Part 36 App. B, §
36.303; Technical Assistance Manual § III-4.3600.
4.
Architectural barriers—Title III requires the removal of architectural
barriers (and communication barriers that are structural in nature). 42 U.S.C. §§
12182(b)(2)(A)(iv) and 12183; 28 C.F.R. §§ 36.304 and 36.401–.406. The degree
of accountability for architectural barriers varies based on whether the place of
public accommodation was newly constructed and first occupied after January 25,
1993, underwent renovations or alterations that affect usability after that date, or
existed prior to that date. 28 C.F.R. Part 36 App. B, § 36.304; MacClymonds v.
IMI Investments, Inc., 2007 WL 1306803, at *3 (S.D. Tex. Apr. 5, 2007). Note,
however, that the ADA “does not simply require that some of Defendants’ …
4 For information about the tax advantages, see, e.g., http://www.ada.gov/archive/taxpack.htm and http://www.ada.gov/taxincent.htm.
10
offices be accessible …; it requires that all of them be so accessible.” Sapp v.
MHI Partnership, Ltd., 199 F. Supp. 2d 578, 587 (N.D. Tex. 2002).
a)
Existing Facilities
(1)
Defendant must remove architectural barriers and those
communication barriers that are structural in nature. 42 U.S.C. §
12182(b)(2)(A)(iv); 28 C.F.R. § 36.304(a).5
(2)
Defense—barrier removal is not “readily achievable.” 42
U.S.C. § 12182(b)(2)(A)(iv); 28 C.F.R. § 36.304(a); MacClymonds
v. IMI Investments, Inc., 2007 WL 1306803, at *4 (S.D. Tex. Apr.
5, 2007). “Readily achievable” means easily accomplished, and not
requiring much difficulty or expense. 42 U.S.C. § 12181(9); 28
C.F.R. § 36.104. See also Kennedy v. Wichita County Heritage
Society, 2008 WL 2511755, at *3–4 (N.D. Tex. June 23, 2008)
(cost of approximately $20,000 to $50,000 was readily achievable
under the circumstances). Title III does not define “difficulty,” but
it includes considerations beyond just cost. Spector v. Norwegian
Cruise Line Ltd., 545 U.S. 119, 135 (2005) (barrier removal that
would violate international legal obligations would create serious
difficulties and have a substantial impact on its operation, and thus
would not be “readily achievable”). Those considerations may
include any “real” threat to safety. Id. at 136–137. There are
various factors to consider in assessing “readily achievable.” 42
U.S.C. § 12181(9)(A)–(D); 28 C.F.R. § 36.104; MacClymonds v.
IMI Investments, Inc., 2007 WL 1306803, at *4 (S.D. Tex. Apr. 5,
2007); 28 C.F.R. Part 36 App. B, § 36.104; Technical Assistance
Manual § III-4.4200. Not readily achievable is a lower standard
than “undue burden,” but the same factors apply. 28 C.F.R. Part 36
App. B, §§ 36.104 and 36.304. Barrier removal is not “readily
achievable”' if it would threaten or destroy the historic significance
of a building or facility that is legally designated as historic. 28
C.F.R. Part 36 App. B, § 36.304. Compare Kennedy v. Wichita
County Heritage Society, 2008 WL 2511755, at *3 (N.D. Tex.
June 23, 2008) (ramp would not destroy historical character). Note
that even if the defendant can show a particular barrier removal is
not readily achievable, it must still make available its goods,
services, facilities, privileges, advantages, and accommodations
through alternative methods (that do not fully comply with
specified requirements) if readily achievable and would not pose a
significant risk to health or safety. 42 U.S.C. §12182(b)(2)(A)(v);
28 C.F.R. §§ 36.304(d)(2) and 36.305(a). Examples of this might
5 Title III also require elimination of certain transportation barriers, but this is beyond the scope of this paper.
11
be curb service, home delivery, retrieving merchandise from
inaccessible shelves, and relocating activities to accessible
locations. 28 C.F.R. § 36.305(b). Note that carrying someone in a
wheelchair is permitted only in manifestly exceptional cases. 28
C.F.R. Part 35 App., § 35.150 (Title II); Technical Assistance
Manual § II-5.2000 (Title II).6
(3)
Elements—The statutory language suggests that the two
issues in such a claim include: 1) whether the facilities have
architectural barriers; and 2) if so, whether removal of those
barriers is readily achievable. MacClymonds v. IMI Investments,
Inc., 2007 WL 1306803, at *4 (S.D. Tex. Apr. 5, 2007).
(4)
Burden of proof—Many court hold that the plaintiff has the
initial burden of introducing evidence tending to show that the
proposed method of removal of an existing architectural barrier is
readily achievable. If the plaintiff meets this burden of production,
the ultimate burden falls on the defendant to prove that the
proposed barrier removal method is not readily achievable.
Kennedy v. Wichita County Heritage Society, 2008 WL 2511755,
at *3 (N.D. Tex. June 23, 2008) (finding plaintiff’s evidence
sufficient); MacClymonds v. IMI Investments, Inc., 2007 WL
1306803, at *5 (S.D. Tex. Apr. 5, 2007); Lewis v. Dallas
Soundstage, Inc., 167 S.W.3d 906, 913 (Tex. App.–Dallas 2005,
no pet.). This latter analysis should be case-by-case. MacClymonds
v. IMI Investments, Inc., 2007 WL 1306803, at *4 (S.D. Tex. Apr.
5, 2007); 28 C.F.R. Part 36 App. B, §§ 36.104 and 36.304.
(5)
Technical specifications—Barrier removal should comply
with ADAAG to the extent readily achievable. 28 C.F.R. §
36.304(d); Technical Assistance Manual § III-4.4300. See also
MacClymonds v. IMI Investments, Inc., 2007 WL 1306803, at *4
(S.D. Tex. Apr. 5, 2007). But proving technical violations of the
ADAAG may not be sufficient to confer liability because the
plaintiff must establish not only that architectural barriers exist, but
also that the plaintiff’s proposed method of removal is readily
achievable. MacClymonds v. IMI Investments, Inc., 2007 WL
1306803, at *6 (S.D. Tex. Apr. 5, 2007). Also, barrier removal in
pre-existing buildings need not exceed the standards for
alterations, 28 C.F.R. § 36.304(g)(1), or if there are no relevant
standards for alterations, shall not exceed the new construction
standards. 28 C.F.R. § 36.304(g)(2).
6 These provisions rely on longstanding DOJ policy under § 504. Note that Title III cannot be interpreted to provide less protection than does § 504, 42
U.S.C. § 12201; 28 C.F.R. § 36.103(c), and the § 504 standards apply unless otherwise specified. 28 C.F.R. Part 36 App. B, § 36.103.
12
Element-by-Element Safe Harbor. The latest amendments to the
Title III regulations clarify that if certain elements in existing
facilities already comply with the 1991 ADAAG and are not being
altered, covered entities need not bring them into compliance with
the 2010 Standards until they are altered. See 28 C.F.R. §
36.304(d)(2) and (g)(4), and § 36.403(a)(2), as amended, 75 Fed.
Reg. 56236, 56254–56255, 56288–56290 (Sept. 15, 2010).
(6)
For examples of barrier removal likely to be readily
achievable, see 28 C.F.R. § 36.304(b).
(7)
Special provisions relate to seating in assembly areas, 28
C.F.R. §36.308(a), and exams and courses. 28 C.F.R. § 36.309. See
also Rush v. National Bd. of Medical Examiners, 268 F. Supp. 2d
673 (N.D. Tex. 2003); Badgley v. Law School Admission Council,
Inc., 2000 WL 33225418 (N.D. Tex. Aug. 24, 2000
The latest amendments to the Title III regulations clarify the rules
regarding accessible seating in assembly areas. See 28 C.F.R. §§
36.308 and 36.406(f), as amended, 75 Fed. Reg. 56236, 56255,
56257, 56295–56296 (Sept. 15, 2010). They also clarify the rules
regarding accommodations for examinations. See 28 C.F.R. §
36.309(b), as amended, 75 Fed. Reg. 56236, 56255, 56296–56298
(Sept. 15, 2010).
b)
Alterations
(1)
Alterations must be done in such a manner that, to the
maximum extent feasible, the altered portions of the facility are
readily accessible to and usable by individuals with disabilities. 42
U.S.C. § 12183(a)(2); 28 C.F.R. § 36.402(a)(1). “Maximum extent
feasible” means except for the occasional case where the nature of
the facility makes it virtually impossible to comply fully. 28 C.F.R.
§ 36.402(c).
(2)
This requirement applies to alterations begun after 1/26/92.
28 C.F.R. §36.402(a).
(3)
“Alterations” are changes that affect or could affect the
usability of a building or facility or any part thereof. 42 U.S.C.
§12183(a)(2), 28 C.F.R. §36.402(b), including "employee-only"
areas. 28 C.F.R. §36.403(b) and (c); 28 C.F.R. Part 36 App. B,
Subpart D and § 36.403. Examples of alterations are remodeling,
renovation, rehabilitation, reconstruction, and moving walls. 28
C.F.R. § 36.402(b)(1). The term does not include maintenance,
13
reroofing, painting or wallpapering, asbestos removal, or changes
to mechanical or electrical systems, unless they affect the usability
of the building or facility. 28 C.F.R. §36.402(b)(1). See also
Kennedy v. Wichita County Heritage Society, 2008 WL 2511755,
at *2 (N.D. Tex. June 23, 2008) (replacing rotted boards on the
front porch did not constitute “alterations”).
(4)
Each altered area must conform to ADAAG to the
maximum extent feasible. 28 C.F.R. §§ 36.402(b)(2) and
36.406(a); MacClymonds v. IMI Investments, Inc., 2007 WL
1306803, at *3 (S.D. Tex. Apr. 5, 2007). The ADAAG guidelines
are set out in Appendix A to 28 C.F.R. Part 36. Exceptions to the
alterations requirements include the “elevator exception,” and
certain considerations regarding historic preservation.
New Accessibility Standards. The latest amendments to the Title
III regulations, 75 Fed. Reg. 56236 (Sept. 15, 2010), replace the
1991 ADAAG with the 2010 “ADA Standards for Accessible
Design.” These new standards7 include new coverage, new
chapters from the updated (2004) version of ADAAG, and certain
other changes. For new construction and alteration begun between
9/15/2010 and 3/15/2012, covered entities may choose between the
1991 ADAAG and the 2010 Standards. New construction and
alteration begun on or after 3/15/2012 must comply with the 2010
Standards. Covered entities that should have complied with the
1991 ADAAG but have not done so by 3/15/2012 must comply
with the 2010 Standards. See 28 C.F.R. §§ 36.104 and 36.406, as
amended, 75 Fed. Reg. 56236, 56250, 56256–56257, 56302–56309
(Sept. 15, 2010).
(5)
In addition, alterations that affect the accessibility or
usability of an area that contains a “primary function” require the
entity to alter the “path of travel” to that area, as well as the
bathrooms, drinking fountains, and telephones serving the area. 28
C.F.R. § 36.403.
(6)
Defenses—The applicable defenses are limited, but include
an “elevator exception,” 28 C.F.R. § 36.404, considerations of
historic preservation, 28 C.F.R § 36.405,8 and structural
impracticability. ADAAG § 4.1.1(5)(a) (refers to “those rare
circumstances when the unique characteristics of terrain prevent
the incorporation of accessibility features.”). There is also a
7 Available online at http://www.ada.gov/regs2010/titleIII_2010/reg3_2010_appendix_b.htm.
8 See also 28 C.F.R. § 36.405(b), as amended, 75 Fed. Reg. 56236, 56526 (Sept. 15, 2010).
14
defense to the “path of travel” requirements if the cost and scope of
such alterations is disproportionate to the cost of the overall
alteration. 28 C.F.R. § 36.403.
c)
New Construction
(1)
New facilities must be designed and constructed so that
they are readily accessible to and usable by individuals with
disabilities. 42 U.S.C. § 12183(a)(1); 28 C.F.R. § 36.401(a)(1);
Whitaker v. West Village Ltd. Partnership, 2004 WL 2008502, at
*3–4 (N.D. Tex. Sept. 8, 2004); Sapp v. MHI Partnership, Ltd.,
199 F. Supp. 2d 578, 583 (N.D. Tex. 2002).
(2)
Applies to facilities designed or constructed for first
occupancy after 1/26/93. 42 U.S.C. §12183(a)(1); 28 C.F.R.
§36.401(a); MacClymonds v. IMI Investments, Inc., 2007 WL
1306803, at *3 (S.D. Tex. Apr. 5, 2007).9
(3)
Accessibility means must comply with ADAAG. 42 U.S.C.
§12183(a)(1); 28 C.F.R. § 36.406(a). ADAAG is set out in
Appendix A to 28 C.F.R. Part 36.
New Accessibility Standards. The latest amendments to the Title
III regulations, 75 Fed. Reg. 56236 (Sept. 15, 2010), replace the
1991 ADAAG with the 2010 “ADA Standards for Accessible
Design.” These new standards10 include new coverage, new
chapters from the updated (2004) version of ADAAG, and certain
other changes.11 For new construction and alteration begun
between 9/15/2010 and 3/15/2012, covered entities may choose
between the 1991 ADAAG and the 2010 Standards. New
construction and alteration begun on or after 3/15/2012 must
comply with the 2010 Standards. Covered entities that should have
complied with the 1991 ADAAG but have not done so by
3/15/2012 must comply with the 2010 Standards. See 28 C.F.R. §§
36.104 and 36.406, as amended, 75 Fed. Reg. 56236, 56250,
56256–56257, 56302–56309 (Sept. 15, 2010).
(4)
Defense—there is a very limited defense when the
defendant can show that it is structurally impracticable to meet
9 See also the Architectural Barriers Act, 42 U.S.C. §4151-4157, and the Rehabilitation Act, 29 U.S.C. §794, as amended, which also require accessibility in
buildings constructed by or on behalf of the federal government, or using federal grants or loans in construction.
10 Available online at http://www.ada.gov/regs2010/titleIII_2010/reg3_2010_appendix_b.htm.
11 Note that the 2010 Standards “overturn” prior court precedent on lines of sight in movie theaters. Compare Lara v. Cinemark USA, Inc., 207 F.3d 783
(5th Cir. 2000), with §§ 221.2.3 and 802.2 of the new Standards.
15
accessibility standards. 28 C.F.R. §36.401(c); ADAAG 4.1.1(5)(a).
There is also an “elevator exemption.” 42 U.S.C. § 12183(b); 28
C.F.R. §36.401(d).
(5)
Maintenance and upkeep of accessibility features is
required, except in isolated instances. 28 C.F.R. § 36.211.12
12 See also 28 C.F.R. § 36.211(c), as amended, 75 Fed. Reg. 56236 (Sept. 15, 2010).
16
Wheelchairs and Other Power-Driven Mobility Devices. The latest amendments
to the Title III regulations adopt a two-tiered approach to mobility devices
effective 3/15/2011. Wheelchairs and other devices designed for use by people
with mobility impairments must be permitted in all areas open to pedestrian use.
“Other power-driven mobility devices” (e.g., Segways) must be permitted unless
the covered entity can demonstrate that it would fundamentally alter its programs,
services, or activities, create a direct threat, or create a safety hazard. See 28
C.F.R. §§ 36.104 and 36.311, as amended, 75 Fed. Reg. 56236, 56251, 56255–
56256, 56259–56263 (Sept. 15, 2010).
VIII.
Retaliation
A.
Retaliation and coercion of a person opposing a discriminatory practice is
unlawful. 42 U.S.C. § 12203(a) and (b); 28 C.F.R. § 36.206.
B.
Any person or entity may be sued for retaliation or coercion. 28 C.F.R. § 36.206;
28 C.F.R. Part 36 App. B, §§ 36.102 and 36.206; Technical Assistance Manual § III3.6000.
C.
The remedies for retaliation in the Title III context are the same as those under
Title III generally. 42 U.S.C. § 12203(c).
IX.
Insurance Provisions. See 28 C.F.R. § 36.212.
X.
Remedies
A.
The Title III remedies and procedures are the same as those under §204(a) of the
1964 Civil Rights Act (42 U.S.C. §2000a-3(a). 42 U.S.C. § 12188(a)(1).
B.
Includes injunctive relief—42 U.S.C. §12188(a)(2). Such relief may include an
order to remove architectural barriers, or to provide auxiliary aids or services. 28 C.F.R. §
36.501(a) and (b); Betancourt v. Federated Dept. Stores, 732 F. Supp. 2d 693, 701 (W.D.
Tex. 2010); Benavides v. Laredo Medical Center, 2009 WL 1755004, at *3 (S.D. Tex.
June 18, 2009). A preliminary injunction is also available. 28 C.F.R. §36.501(a).
C.
Money damages
1.
Recoverable in an action brought by the Attorney General. 42 U.S.C. §
12188(b)(2)(B).
2.
Not recoverable otherwise. Betancourt v. Federated Dept. Stores, 732 F.
Supp. 2d 693, 701 (W.D. Tex. 2010); Benavides v. Laredo Medical Center, 2009
WL 1755004, at *3 (S.D. Tex. June 18, 2009); Whitaker v. West Village Ltd.
Partnership, 2004 WL 2008502, at *4 (N.D. Tex. Sept. 8, 2004); Technical
Assistance Manual § III-8.2000. See also Newman v. Piggie Park Enterprises,
Inc., 390 U.S. 400 (1968) (no damages under 42 U.S.C. §2000a-3(a)).
17
D.
XI.
Attorney’s fees and costs are recoverable. 42 U.S.C. § 12205; 28 C.F.R. § 36.505.
Safety Defenses—there are two possible safety defenses:
A.
Direct threat to the health or safety of others. 42 U.S.C. § 12182(b)(3); 28 C.F.R.
§ 36.208;13 Bragdon v. Abbott, 524 U.S. 624, 648–649 (1998). This means a significant
risk that cannot be eliminated by modification or auxiliary aid. 28 C.F.R. § 36.208(b).
Because few, if any, activities in life are risk free, the ADA does not ask whether a risk
exists, but whether it is significant. Bragdon, supra, at 649. In determining if there is a
direct threat, defendant must make an individual assessment, based on several listed
factors. 28 C.F.R. § 36.208(c); Technical Assistance Manual § III-3.8000. Direct threat
must also be based on “current medical knowledge or on the best available objective
evidence.” Id. A good faith belief does not relieve the defendant from liability. Bragdon,
supra, at 649. Note that neither Title III itself, nor the Title III regulations, includes a
“threat to self” defense. Compare 28 C.F.R. § 36.208(a) (Title III) with 29 C.F.R.
§1630.2(v) (Title I).14
B.
XII.
Adoption of general safety requirements under 28 C.F.R. § 36.301(b).
Procedural Matters
A.
Jurisdiction—There is federal court jurisdiction under 28 U.S.C. §1331 (federal
question) and 28 U.S.C. §1343 (civil rights). State courts also have concurrent
jurisdiction. Zatarain v. WDSU-Television, Inc., 79 F.3d 1143, 1996 WL 97105, at *3
(5th Cir. Feb. 7, 1996) (unpublished) (decided under Title I).
B.
Limitations—There is no express statute of limitations for ADA Title III claims.
Case law suggests that the court should apply the state’s two-year personal injury statute.
Compare Frame v. City of Arlington, 616 F.3d 476, 489 (5th Cir. 2010) (reh. en banc
granted) (decided under Title II).
C.
Exhaustion of administrative remedies—not required. Kirk v. Renal Associates,
P.A., 2007 WL 2048833, at *5 (W.D. Tex. July 16, 2007).
D.
Standing is required.
1.
This means a real and immediate threat of future harm; it must be likely
that plaintiff will be discriminated against by defendant in the future. Plumley v.
Landmark Chevrolet, Inc., 122 F.3d 308, 312 (5th Cir. 1997) (cannot use to
remedy purely past wrongs, and unlikely would be wronged in future).
13 See also 28 C.F.R. § 36.208(b), as amended, 75 Fed. Reg. 56236 (Sept. 15, 2010).
14 See also 28 C.F.R. § 36.104, as amended, 75 Fed. Reg. 56236 (Sept. 15, 2010). At least one court has interpreted the regulatory difference as
eliminating a “threat to self” defense in the Title III context. See Celano v. Marriott Intern., Inc., 2008 WL 239306 (N.D. Cal. Jan. 28, 2008).
18
2.
Courts are not always consistent on the test for standing. See Betancourt v.
Federated Dept. Stores, 732 F. Supp. 2d 693, 702–710 (W.D. Tex. 2010)
(rejecting the necessity of a “concrete plan to return” in favor of showing that (a)
discriminatory barriers remain in place, (b) plaintiff continues to have a disability,
and (c) plaintiff is “able and ready” to visit the facility once it is made compliant.)
3.
Sufficient standing: Benavides v. Laredo Medical Center, 2009 WL
1755004, at *3–5 (S.D. Tex. June 18, 2009) (local resident with health conditions
had standing to sue hospital); Spector v. Norwegian Cruise Line Ltd., 2007 WL
2900588, at *6–7 (S.D. Tex. Sept. 28, 2007) (“The court will not equate travelers
who have shown sincere intentions to take cruises and have done so in the past
with the ‘some day’ intentions to visit endangered species halfway around the
world that the Supreme Court found was insufficient to show injury in fact. …
The ADA both requires and expects that Plaintiffs allege future intentions to take
another cruise, but it does not require that Plaintiffs continually subject
themselves to discrimination to establish standing.”).
4.
Insufficient standing: Access 4 All, Inc. v. Wintergreen Commercial
Partnership, Ltd., 2005 WL 2989307, at *4 (N.D. Tex. Nov. 7, 2005) (finding
lack of standing based in part on the lack of evidence or allegations that plaintiff
traveled frequently to this area from his home out of state, or would stay at this
particular hotel). See also Association For Disabled Americans, Inc. v. 7-Eleven,
Inc., 2002 WL 546478, at *4 (N.D. Tex. Apr. 10, 2002) (no evidence that
plaintiffs had ever visited Texas).
5.
The plaintiff must also have the type of disability that is affected by the
particular barriers at issue. Association For Disabled Americans, Inc. v. 7-Eleven,
Inc., 2002 WL 546478, at *4 (N.D. Tex. Apr. 10, 2002).
6.
An organization plaintiff may assert standing either on its own behalf
(organizational) or as the representative of its members (representational). Access
4 All, Inc. v. Wintergreen Commercial Partnership, Ltd., 2005 WL 2989307, at *5
(N.D. Tex. Nov. 7, 2005); Matta v. Lam, 2003 WL 21448942, at *2 (N.D. Tex.
June 18, 2003). But “bare assertions” of such standing may be insufficient to
confer standing. Access 4 All, supra, at *5. Likewise, bare assertions of the nature
of members’ disability may be insufficient. Association For Disabled Americans,
Inc. v. 7-Eleven, Inc., 2002 WL 546478, at *3–4 (N.D. Tex. Apr. 10, 2002).
E.
Pleading requirements
1.
For Title III claim based on the alleged failure to provide an auxiliary aid
or service, the plaintiff should allege the aid or service that was required but not
provided. Betancourt v. Federated Dept. Stores, 732 F. Supp. 2d 693, 711 (W.D.
Tex. 2010).
19
2.
In a policy-modification case, plaintiff should allege the existence of a
policy, that a modification was requested, that the requested modification was
reasonable, and that it was denied. Betancourt v. Federated Dept. Stores, 732 F.
Supp. 2d 693, 711 (W.D. Tex. 2010). See also MacClymonds v. IMI Investments,
Inc., 2007 WL 1306803, at *3 (S.D. Tex. Apr. 5, 2007).
3.
Plaintiff should also allege that the defendant owns or operates a place of
public accommodation as defined by the ADA. Reule v. Sherwood Valley I
Council of Co-Owners, Inc., 2005 WL 2669480, at *3 (S.D. Tex. Oct. 19, 2005).
Resources
The statute, regulations, ADA Handbook materials, ADAAG, and other resources are all
available online, including at <http://www.jan.wvu.edu/links/adalinks.htm>.
20