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The information presented in any of the Demand Our Access podcast episodes, on the Demand Our Access website, or otherwise shared in conjunction with or through association with the Demand Our Access project is expressly not individual legal advice. Applying the law depends on the circumstances and events that comprise every situation. Since legal advice is fact-specific, nothing about the Demand Our Access project can provide an individual, a group of individuals, or any organization legal advice.

Title III Continued

General Requirements Under Title III

Denial of Participation

Under the ADA,, a person with a disability cannot be denied service simply because they have a disability.

Equality in Participation

The ADA mandates an equal opportunity to participate in or benefit from the goods and services offered by a place of public accommodation, but does not guarantee that an individual with a disability must achieve an identical result or level of achievement as persons without disabilities. A person who uses a wheelchair cannot be denied access to an exercise class because they cannot do all of the exercises.

Separate Benefit and Integrated Setting

The major principles behind the ADA's efforts to provide people with disabilities access to mainstream opportunities are as follows:

Individuals with disabilities must be integrated to the maximum extent appropriate.

Separate programs are permitted where necessary to ensure equal opportunity. A separate program must be appropriate to the particular individual.

Individuals with disabilities cannot be excluded from the regular program, or required to accept special services or benefits.

Separate Programs

A public accommodation may offer separate or special programs necessary to provide individuals with disabilities an equal opportunity to benefit from the programs. Such programs must, however, be specifically designed to meet the needs of the individuals with disabilities for whom they are provided.

Example

Typically, an art museum does not allow patrons to touch exhibits. Working with a local affiliate of ACB, the art museum arranges a special tour for blind people where the touching of certain exhibits is allowed.

Right to Participate in the Regular Program

Even if a separate program is offered to people with disabilities, a public accommodation cannot deny people with disabilities the right to participate in the regular program, unless some other limitation on providing access exists.

Example

Even if a local ACB affiliate has arranged a special tour for blind people where the touching of some exhibits will be allowed, an art museum cannot force a blind person to take the separate tour. If the blind person wishes, they must be allowed to take any tour offered by the museum.

Modifications in the Regular Program

When a public accommodation offers a special program but a person with a disability chooses to participate in the regular program, the public accommodation is likely to have to provide modifications to the regular program to enable the person with a disability to participate. The fact that a separate program is offered may be a factor in determining the extent of the obligations under the regular program, but only if the separate program is appropriate to the needs of the particular individual with a disability.

Discrimination Based on Association

A public accommodation may not discriminate against individuals or entities because of their known relationship or association with persons who have disabilities.

Retaliation or Coercion

Individuals who exercise their rights under the ADA, or assist others in exercising their rights, are protected from retaliation. The prohibition against retaliation or coercion applies broadly to any individual or entity that seeks to prevent an individual from exercising his or her rights or to retaliate against him or her for having exercised those rights.

Direct Threat

A public accommodation may exclude an individual with a disability from participation in an activity, if that individual's participation would result in a direct threat to the health or safety of others. The public accommodation must determine that there is a significant risk to others that cannot be eliminated or reduced to an acceptable level by reasonable modifications to the public accommodation's policies, practices, or procedures or by the provision of appropriate auxiliary aids or services. The determination that a person poses a direct threat to the health or safety of others may not be based on generalizations or stereotypes about the effects of a particular disability; it must be based on an individual assessment that considers the particular activity and the actual abilities and disabilities of the individual.

The individual assessment must be based on reasonable judgment that relies on current medical evidence, or on the best available objective evidence, to determine –

The nature, duration, and severity of the risk

The probability that the potential injury will actually occur

Whether reasonable modifications of policies, practices, or procedures will mitigate or eliminate the risk

Specific Requirements

Eligibility Criteria

A public accommodation may not impose eligibility criteria that either screen out or tend to screen out persons with disabilities from fully and equally enjoying any goods, services, privileges, advantages, or accommodations offered to individuals without disabilities, unless it can show that such requirements are necessary for the provision of the goods, services, privileges, advantages, or accommodations.

Example

The owner of a parking garage has a policy preventing vans from parking inside even though the garage has the capacity to hold vans. The owner adopted the policy with no intention of keeping people with disabilities from parking in the garage. But the impact of the policy on those with disabilities who use vans to transport their mobility devices means the garage's policy violates the ADA.

Safety

A public accommodation may impose legitimate safety requirements necessary for safe operation. However, the public accommodation must ensure that its safety requirements are based on real risks, not on speculation, stereotypes, or generalizations about individuals with disabilities.

Example

A wilderness tour company may require people to prove a basic level of swimming ability prior to allowing them to participate in a rafting program.

Unnecessary Inquiries

The ADA prohibits unnecessary inquiries into the existence of a disability.

Surcharges

A public accommodation may not place a surcharge only on people with disabilities to cover the cost of accommodating them.

Reasonable Modifications

A public accommodation must reasonably modify its policies, practices, or procedures to avoid discrimination. If the public accommodation can demonstrate, however, that a modification would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations it provides, it is not required to make the modification.

Example

A retail store has a policy of not taking special orders for out-of- stock merchandise unless the customer appears personally to sign the order. The store would be required to reasonably modify its procedures to allow the taking of special orders by phone from persons with disabilities who cannot visit the store.

Check-out Aisles

If a store has check-out aisles, customers with disabilities must be provided an equivalent level of convenience in access to check- out facilities as customers without disabilities. To accomplish this, the store must either keep an adequate number of accessible aisles open or otherwise modify its policies and practices.

Example

If a store's only accessible aisle is generally reserved for those with 10 items or less, the store must modify its policy to allow a wheelchair user with an order larger than 10 items to use the only accessible check-out aisle.

Specialty Goods

Generally, public accommodations are not required to carry specialty goods for people with disabilities. for example, book stores are not generally required to offer braille books.

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

The accessible or special goods requested can be obtained from one of its regular suppliers

Personal Services and Devices

A public accommodation is not required to provide individuals with disabilities with personal or individually prescribed devices, such as wheelchairs, prescription eyeglasses, or hearing aids, or to provide services of a personal nature, such as assistance in eating, toileting, or dressing.

The phrase "services of a personal nature" is not to be interpreted as referring to minor assistance provided to individuals with disabilities. Getting items from shelves someone with a disability can't reach and removing the cover from someone's straw aren't considered personal services.

Auxiliary Aids and Services

A public accommodation is required to provide auxiliary aids and services that are necessary to ensure equal access to the goods, services, facilities, privileges, or accommodations that it offers, unless an undue burden or a fundamental alteration would result. This obligation extends only to individuals with disabilities who have physical or mental disabilities, such as vision, hearing, or speech disabilities, that substantially limit the ability to communicate.

Examples of Auxiliary Aids and Services

Auxiliary aids and services are simply aids and services that make communication for people with communication disabilities easier. Things like sign language interpreting,