Titles II and III of the ADA Sherrie Brown CHID/LSJ 434 February 2010

Americans with Disabilities Act (1990) Comprehensive federal civil rights law with broader coverage than Rehabilitation Act of 1973. Many of the “standards” established under Sections 501,503 & 504 were included in ADA. Covers Employers with more than 15 employees (Title I), Public Services of local and state government (Title II), Public Accommodations (Title III), Telecommunications Relay Services (Title IV). Some differences among Titles: Rights of individuals. Duties of covered entities. Defenses allowed covered entities differ—i.e., undue hardship, undue burden, direct threat, unqualified.

The ADA Language No covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment. (Title I) [N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. (Title II) 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. (Title III)

Qualified individual is one who Can perform the essential functions of the job with or without reasonable accommodations. (Title I) Meets eligibility requirements for the program or service in question. (Titles II)

Reasonable Modification or Accommodation Modification or adjustment to job or program application process, work, school, community environment, and/or manner under which job or tasks are performed. Modification or adjustment that allows an employee or individual to enjoy the same benefits and privileges afforded others. Case by case analysis required. Undue burden (Title II & III) or hardship (Title I) is a defense for covered entity and substantial modification not required. Employer or other covered entity can refuse to hire or accept an individual who is a threat to him/herself or others.

Defenses Defined… Undue Hardship (Title I): Substantial Modification: Encompassing significant difficulty or expense. Considering the nature and cost of the required action; the overall financial resources, type of operation; impact of the action on the covered entity; and legitimate safety concerns. Substantial Modification: Significant, major, Herculean—goes to the integrity of the program. Great deal of deference given to academic or other covered entity. Fundamental Alteration: (Title II & III) The nature of the good, service, etc being offered.

What is Required of Title II Entities? What entities are covered? All programs, activities and services of public institutions. Covers all entities providing public transportation services. Must eliminate any eligibility criteria for participation that screens out persons with disabilities unless necessary. Higher education may not inquire about prospective students disabilities prior to admission—disclosure is voluntary. Must reasonably modify policies, practices, or procedures at no cost to the person unless it fundamentally alters the nature of the service. Must provide auxiliary aids and services where necessary to provide an equal opportunity to participate. In a timely manner. In post-secondary schools, may ask student for documentation/evaluations. Must ensure that “when viewed in their entirety” program must be readily accessible to and useable by disabled individuals (program accessibility). Services must be provided in the most integrated setting possible. New buildings constructed by state and local governments must be accessible; alterations must also be accessible.

What are the Rights of Students under Title II? Prospective students may request changes in standardized testing. The right to have assistance with filing out financial aid and student employment applications etc. Students do not have to disclose that he/she has disability unless requesting academic adjustments. The right to academic adjustments unless lowers or eliminates essential requirements, or fundamentally alters the program, or creates undue burden. Auxiliary aids when appropriate—e.g., taped texts, note takers, closed caption decoders, open and closed captioning, interpreters. Students must request of the school and give sufficient notice. Non-degree students are also eligible for auxiliary aids. School has right to obtain own professional determination re: whether specific requests are necessary. Schools do not have to provide requested device IF they provide something effective (not necessarily same result but equal opportunity to obtain the same result) in the most integrated setting appropriate. Auxiliary aid is provided by school unless creates undue burden. Students do not have the right to ask for personal aids or services to be paid for by the schools (help with personal care, readers for personal use or study). Students can complain to the Office of Civil Rights (OCR) in the US Department of Education.

What is Required of Entities under Title III? Who are the covered entities? A list of 12 entities that offer services (open) to the public—i.e., place of lodging, restaurant, bar, theaters, place of public gathering, shops, service establishments, public transportation station, museum, park, private schools, gyms. Title III requires: Reasonable modifications to practices, policies, procedures. Provision of auxiliary aids and services unless such modifications fundamentally alter the nature of the goods or result in undue burden. Removal of architectural and communication barriers where removal is “readily achievable”—easily accomplished and able to be carried out without much difficulty or expense. Does not require identical results—simply requires equal opportunity to obtain the same results. Does not require fundamental alterations. Does not cover employment discrimination.

What are the Rights of Individuals under Title III? Modification of a policy that denies equal access—such as allowing service animals where usually not allowed—but not if greatly alters (fundamentally alters) its operations. Right to auxiliary aids and services when necessary to ensure effective communication with people who are deaf, blind or similar disabilities—but not if undue burden. Removal of architectural barriers where readily achievable—which means easily accomplished and without much difficulty or expense. New buildings (after January 26, 1993) are required to be accessible. What can an individual do if being discriminated against? Contact the manager/owner in writing and if not able to resolve, File a complaint with the Department of Justice (DOJ) or private lawsuit. DOJ does not have to investigate all cases but there is also an option for ADA mediation through DOJ.