It seems like Title III ADA questions are coming up more and more often these days. I wrote about the basics of Title III a while back, and figured it is time to post on it again.
Typically when a company has questions relating to its obligations under the ADA, the questions relate to the company’s duties regarding its employees. Those obligations are addressed under Title I of the ADA. Title III, on the other hand, prohibits discrimination by public accommodations (e.g., restaurants, movie theaters, hotels, doctors’ offices, grocery stores, schools, museums) against disabled individuals.
The general rule under Title III is that:
[n]o 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).
This is the law that comes up when the news talks about a store that failed to allow a service animal to enter and, likewise, this law extends to issues with the actual construction of a building that present barriers for a person with a disability (i.e., a doorway not being large enough for a wheelchair to fit through).
While there are so many nuances in the law and topics that can be discussed, let’s start with service animals. The regulations define a “service animal” as “any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.” The work or tasks performed by a service animal must be directly related to the individual’s disability. (There is also a separate provision under the ADA about miniature horses that have been individually trained to do work or perform tasks for people with disabilities. In addition, state law may impose additional obligations, as may other federal laws that apply to certain industries.)
Examples of “work or tasks” include, but are not limited to guiding individuals with impaired vision, alerting individuals with impaired hearing to intruders or sounds, providing minimal protection or rescue work, pulling a wheelchair, or fetching dropped items.
Service animals are not considered pets. Accordingly, a public accommodation is not permitted to ask about the nature or extent of a person’s disability, but may make two inquiries to determine whether an animal qualifies as a service animal: (1) if the animal is required because of a disability; and (2) what work or task the animal has been trained to perform. 28 C.F.R. § 36.302(c)(6).
When looking broadly at the obligations under Title III, there are four main categories of prohibitions but, like any law, there are exceptions. If this were a magazine, I would make the next chart one of those cardstock, tear-out sheets that you can put in your back pocket and reference. While this is just the tip of the iceberg of obligations that may exist and legal arguments that can be made under Title III (and doesn’t begin to contemplate individual state laws), it provides a general overview of the various buckets the Title III obligations can fall within.
|Imposing eligibility criteria that screen out individuals with disabilities.
||Unless such criteria can be shown to be necessary for the provision of goods, services, facilities, privileges, advantages, or accommodations being offered.
|Failing to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities.
||Unless the modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or when the individual (or accommodation) poses a direct threat to the health or safety of others.
|Failing to take steps necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently because of the absence of auxiliary aids and services (e.g., qualified interpreters, assistive listening systems, real-time captioning, written materials, etc.).
||Unless the modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations or would result in an undue burden.
|Failing to remove architectural barriers and communication barriers that are structural in nature in existing facilities.
||Unless such removal is not readily achievable.*Note there are different requirements for facilities that are new construction and/or have been altered. In certain instances, if a barrier cannot be removed, then alternative methods must be employed that are readily achievable (e.g., providing curb service or home delivery, retrieving merchandise from inaccessible racks, or relocating activities to accessible locations).
In the near future, I anticipate we will have a lot more guidance on Title III issues that arise with websites. While the DOJ has stated that websites are covered by Title III, the Ninth Circuit (which includes the state in which I practice, Arizona), recently addressed whether web-only businesses (i.e., websites not connected to any brick and mortar physical place) are covered by Title III and came to the opposite conclusion. The Ninth Circuit found on April 1, 2015 that eBay could not be liable under Title III because its services are not tied to an actual, physical place.