Disclaimer
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.
Advocating for Our Rights Under Title III
Introduction
As a refresher, Title III of the Americans with Disabilities Act (Title III) applies to businesses and nonprofits. In this episode, I will briefly recap important concepts under Title III. I will then discuss the steps I take when I need to advocate with a business or a nonprofit under Title III. I will also include a sample writing you can use when you need to advocate under Title III. Although the sample I am including will be intended to be written, if you are more comfortable talking to someone about your rights under Title III, the sample text I have included could be used as talking points for you in a discussion that takes place over the phone or in-person.
As always, I will include important links when this episode is posted to the Demand Our Access website.
If you have any questions or comments about this episode, you can feel free to reach me through the contact form at the Demand Our Access website, or you can email me at [email protected].
Recapping Title III
Since this is intended to be a vrief recap of Title III, I am going to focus on which entities are covered by Title III and provide a quick reminder about surcharges. I have made the entities covered by Title III the focus of this brief review, because you need to understand which entities are covered by Title III prior to contacting a particular entity to advocate for rights.
If you want to learn more about Title III, please check out Basics Under Title III and Basic Under Title III continued.
Coverage
General Provisions
Title III covers:
Places of public accommodation
Commercial facilities
Examination and courses related to applications, licensing, certification, or credentialing for secondary or postsecondary education, professional, or trade, purposes
Title III also covers private entities primarily engaged in transporting people, but those regulations are produced by the Department of Transportation and will not be discussed in this episode.
Public Accommodations
The whole range of Title III requirements apply to entities the Department of Justice calls public accommodations. In order to be considered a public accommodation an entity must be private and it must own, lease, lease to, or operate a place of public accommodation.
Defining a Place of Public Accommodation
A place of public accommodation is a facility whose operations:
Affect commerce
And fall within one of the following 12 categories:
Places of lodging (e.g., inns, hotels, 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, stadiums
Places of public gathering (e.g., auditoriums, convention centers, lecture halls
Sales or rental establishments (e.g., bakeries, grocery stores, hardware stores, 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, professional offices of health care providers, hospitals
Public transportation terminals, depots, or stations (not including facilities relating to air transportation
Places of public display or collection (e.g., museums, libraries, galleries
Places of recreation (e.g., parks, zoos, 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, adoption agencies
Places of exercise or recreation (e.g., gymnasiums, health spas, bowling alleys, golf courses
In order to be a place of public accommodation, a business does not need to be expressly named in the above list; rather, it needs to fall within one of the 12 categories listed above. So, a sporting goods store is a place of accommodation under the sales and rentals category even though sporting goods stores aren't directly mentioned in the above list of places of public accommodation.
Commercial Landlords and Tenants
Both landlords and tenants are responsible for following Title III. But the law allows landlords and tenants to contractually determine their rights and responsibilities under Title III. That being said, if your rights under Title III are violated, you could, depending on the facts, sue either the landlord or the tenant and let them fight over who will pay.
Religious Institutions
Religious entities are exempt from the provisions of Title III. A religious entity under Title III is defined as "a religious organization or an entity controlled by a religious organization, including a place of worship." The exemption covers all of a religious organizations, activities whether they are religious or secular.
Examples
A religious institution runs a private school for members and nonmembers. Even though private schools are generally covered by Title III, the religious institution's private school does not have to follow Title III.
If a religious organization rents space for someone else to run a private school, the religious institution, as a landlord, has no responsibility under Title III. But the private organization running the private school would be subject to the requirements of Title III.
If a religious institution donates space on its property to be used as a private school, neither the religious institution nor the private group using the donated space to run a private school is covered by Title III.
The examples show that the only way a private organization that is not a religious institution can be subject to Title III is if the private organization rents or leases space from the religious institution.
Private Clubs
Strictly private clubs aren't covered by Title III. Courts typically use the following five factors when determining whether a club is private and thus exempt from the provisions of Title III:
Members exercise a high degree of control over club activities
The member selection process is very selective
Substantial membership fees are charged
The entity operates as a nonprofit
The club was not founded to avoid federal civil rights laws
Facilities of a private club lose their exempt status to the extent they are made available to the public.
Example
A private country club rents to a private organization to run a day care center from its facility. The day care center accepts students whose families are members of the country club and from families who aren't members of the country club. By allowing nonmembers of the country club to use the day care center, the private club has lost its Title III exemption for the portion of its facility used as a day care center.
State and Local Governments Under Title III
State and local governments aren't subject to the provisions of Title III. As we saw in the episode called "Title II Basics" state and local governments are covered by Title II of the ADA. The reason I'm mentioning this in an episode about Title III is that facilities and programs can be subject to the requirements of Titles II and III.
Examples
A state's parks department provides a restaurant in one of its parks. The state parks department contracts with a private corporation to manage the restaurant.
Even though the parks department is not directly managing the restaurant, it is required to ensure that the restaurant complies with all of the relevant provisions of Title II. The corporation managing the restaurant is required to follow the provisions of Title III.
A city owns an office building. It rents the first floor of the building as commercial space to a restaurant, news stand, and an office supply store.
The entire building, because it's owned by a city, is subject to the requirements of Title II. This means that the city, as a landlord, is required to ensure all of the commercial activities taking place on the first floor live up to the city's responsibilities under Title II.
A state and a private corporation enter into a joint venture to build a football stadium. The stadium is subject to the requirements of Titles II and III. To the extent that there is a difference in what is required as the stadium is constructed, the joint venture must use the requirement that would provide the most accessibility, whether the standard is found under Title II or III.
Surcharges
A public accommodation may not place a surcharge only on people with disabilities to cover the cost of accommodating them.
Advocating for Our Rights Under Title III
For those of you who listened to the episode on Advocating for Our Rights Under Title II, some of this will sound familiar. This is because to advocate for Our
rights Under Title III, we will use the same three steps we use when we advocate for our rights Under Title II. Although the steps for advocating under Titles II and III are the same, the language we will use and the rights we have are a bit different. The three steps to advocate for our rights are as follows:
Decide who to contact
Prepare what to say
Once your request is submitted
Decide Who to Contact
Deciding who to contact when you need to request an accommodation and/or modification from a business or a nonprofit can be difficult.
