What are “public accommodations” under the ADA?
Public accommodations are private businesses, both for-profit and not-for-profit. A place of public accommodation is a facility whose operations affect commerce and falls into at least one of these categories:
- Places of lodging (inns, hotels, or motels);
- Places that serve food or drink (restaurants and bars);
- Places of exhibition or entertainment (theaters, stadiums, arenas);
- Places of public gathering (auditoriums, convention centers);
- Sales or rental establishments (stores, shopping centers);
- Service establishments (banks, beauty shops, repair shops, f
- uneral homes, gas stations, professional offices, pharmacies, hospitals);
- Public transportation terminals, depots or stations;
- Places of public display or collection (museums, libraries, galleries);
- Places of recreation (parks, zoos, amusement parks, gyms, pools);
- Places of education (nursery schools, elementary, secondary, undergraduate, or postgraduate schools, trade or technical schools);
- Social service center establishments (day care centers, senior citizen centers, homeless shelters, food banks, adoption agencies); or
- Places of exercise or recreation (gyms, spas, golf courses).
What does Title III of the ADA require from these places of public accommodation?
Places of public accommodation may not discriminate against people with disabilities and may not deny full and equal enjoyment of the goods and services they offer.
What about churches, synagogues, mosques, and religious entities? Are they exempt?
Yes. There is a specific exemption for religious entities in the ADA. There are a lot of misunderstandings about this exemption. It covers all of the programs and activities of a religious entity, even if they aren’t religious programs or activities.
In some cases, a religious entity rents out space and, in that situation, the religious entity is a landlord and the business that rents space is the tenant. If the religious entity rents space to a business likes a daycare center or a private school, the religious entity is still exempt, but the tenant business is not, unless it is also a religious entity. So if the tenant business is not a religious entity, then the religious entity landlord is still exempt from Title III of the ADA, even if the tenant business is covered. So the obligations of a landlord for a place of public accommodation under Title III do not apply if the landlord is a religious entity.
If the religious entity donates space for the use of a community organization, such as a scout troop, civic club, or social group, then, in that circumstance, both the religious entity and the nonreligious entity are exempt from the requirements of Title III of the ADA. The nonreligious tenant is covered by Title III only if there is a lease that requires a payment of rent or some other consideration.
Is the exemption for religious entities the only exemption in Title III?
No, there is also an exemption for private clubs, but it works a little differently than it does for religious entities. The concept of an exemption for private clubs was first mentioned in the Civil Rights Act of 1964, which prohibits discrimination based on race, color, sex, and national origin by places of public accommodation.
When courts have interpreted the private club exemption, the issues considered include whether: members have a high degree of control over club operations; the selection of members is highly selective; there are substantial membership fees; the entity is operated on a nonprofit basis; and the club was not founded specifically to avoid being covered by federal civil rights laws.
Unlike religious entities, however, private clubs lose their exemption to the extent that they are made available for use by nonmembers as places of public accommodation.
For example, if a private country club that is considered a private club for ADA purposes decides to rent space to a retail business that is open to nonmembers, then the private club would still be exempt for all of its other operation, but it would have ADA Title III obligations for the retail business.
Do both buildings and parking lots have to be accessible to individuals with disabilities?
Yes. Parking lots are also covered by the ADA, with specific requirements for the number of spaces that must be accessible relative to the total number of spaces in the parking lot.
The day care center near my home says that it is not equipped to handle children with disabilities. Can they just refuse to accept my child who has a disability?
Day care centers cannot legally refuse to accept children with disabilities because of their disabilities unless it can show that it would cause an undue burden, considering all the financial resources available to the day care center, including tax incentives, or would fundamentally alter the services offered by the day care center. That determination has to be made on a case-by-case basis. There cannot be a “no children with disabilities” policy.
If a business operates out of a space it leases, who is responsible for ADA compliance – the tenant or the landlord?
The ADA places the responsibility for compliance on both the landlord and the tenant. But the landlord and tenant might decide, through the terms of the lease, which will actually make the changes, remove the barriers, provide the aids and services, and pay for them. However, both the tenant and the landlord remain legally obligated.
Are small businesses held to the same accessibility standards as big businesses?
The ADA requires that all businesses remove architectural barriers in existing facilities when it is “readily achievable” to do so. Readily achievable means “easily accomplishable without much difficulty or expense.” This requirement is based on the size and resources of a business. So, according to the U.S. Department of Justice, businesses with more resources are expected to do more than businesses with fewer resources.
Readily achievable barrier removal may include providing an accessible route from a parking lot to the business’ entrance, installing an entrance ramp, widening a doorway, installing accessible door hardware, repositioning shelves, or moving tables, chairs, display racks, vending machines, or other furniture. When removing barriers, businesses are required to comply with the Standards to the extent possible. For example, where there is not enough space to install a ramp with a slope that complies with the Standards, a business may install a ramp with a slightly steeper slope. However, any deviation from the Standards must not pose a significant safety risk.
If a business can’t afford to do everything at once in terms of barrier removal, how does it set priorities for doing so?
Understanding how customers move into and through a business will go a long way in identifying existing barriers and setting priorities for their removal. It’s important to know whether people get to the business by foot, by car, or by public transportation, and whether the business provides parking. The ADA regulations recommend the following priorities for barrier removal:
- Providing access to the business from public sidewalks, parking areas, and public transportation;
- Providing access to the goods and services the business offers;
- Providing access to public restrooms; and
- Removing barriers to other amenities offered to the public, such as drinking fountains.
The requirements about access and barrier removal may include a wide variety of activities, such as rearranging furnishings, widening doors, constructing ramps, installing visible alarm devices, and providing signage with Braille and raised characters.
Businesses are encouraged to consult with people with disabilities in their communities to identify barriers and establish priorities for removing them. A thorough evaluation and barrier removal plan, developed in consultation with members of the disability community, can save time and resources.
In some instances, especially in older buildings, the removal of some architectural barriers may not be readily achievable. For example, a restaurant with several steps leading to its entrance may determine that it cannot afford to install a ramp or a lift. In this situation, the restaurant must provide its services in another way if that is readily achievable, such as providing takeout service. Businesses should train staff on these alternatives and publicize them so that customers with disabilities will know of their availability and how to access them.
The image depicts a young woman in a wheelchair dressed in a light blue dress is facing a long and steep stair leading to the retail store
Do all restrooms have to be accessible?
If a business has a public restroom, at least one toilet room must be accessible and must have a sign that says it is an accessible toilet. There are very specific measurements and provision in the 2010 Standards regarding accessible restrooms.
What are some of the barriers that people with disabilities encounter in retail stores?
The obligation to remove barriers also applies to merchandise shelves, sales and service counters, and check-out aisles. Shelves and counters must be on an accessible route with enough space to allow customers using mobility devices to access merchandise. Shelves may be of any height since they are not subject to the ADA’s reach range requirements. Where barriers prevent access to these areas, they must be removed if readily achievable. However, businesses are not required to take any steps that would result in a significant loss of selling space. At least one check-out aisle must be usable by people with mobility disabilities, though more are required in larger stores. When it is not readily achievable to make a sales or service counter accessible, businesses should provide a folding shelf or a nearby accessible counter. If these changes are not readily achievable, businesses may provide a clip board or lap board until more permanent changes can be made.
What are some of the barriers encountered by people with mobility disabilities in restaurants?
People with disabilities need to be able to get to tables, food service lines, and condiment and beverage bars in restaurants, bars, or other places where food or drinks are sold. There has to be an accessible route to all dining areas, including raised or sunken dining areas and outdoor dining areas, as well as to food service lines, service counters, and public restrooms. In a dining area, tables should be far enough apart so a person using a wheelchair can maneuver between the tables when patrons are sitting at them. Some accessible tables must be provided and must be dispersed throughout the dining area rather than clustered in a single location. If people with disabilities cannot access a raised, sunken, or outdoor dining area, then barriers must be removed if readily achievable. In restaurants or bars with only standing tables, some accessible dining tables must be provided.
Are automatic teller machines (ATMs) covered by Title III of the ADA?
Do all ATMs have to be accessible?
At least one ATM per location must be accessible. If a bank offers ATMs both inside and outside the bank, each of those is considered to be a different location and must have at least one accessible ATM inside and outside.
If a drive-up ATM is a separate location, then it must be accessible and provide voice guidance and Braille instruction. Sometimes people question why drive-up ATMs have to be accessible to people who have visual impairments. A person with a visual impairment might ask a friend or family member, or even a taxi, to drive him to the bank. Just because a person is blind or has low vision should not mean that s/he should have to give out a PIN or trust that the sighted person is handling the transaction correctly.
The keypads on accessible ATMs may be different. The 2010 Standards require a left arrow symbol on the clear function key. The ATM’s keypad has to be in a 12-key descending layout, which is how a computer number pad is designed. Function keys must be designed to contrast visually from their background surfaces.
Do the accessible ATMs have to offer all of the same options as the other ATMs?
Yes. All of the banking services that are available at other ATMs must also be available at accessible ATMs. And if non-banking services, such as the ability to purchase postage stamps or theater tickets, are available on the non-accessible ATMs, they must also be available at the accessible ATMs.
Do all parts of a walk-up ATM have to be accessible?
The input controls for accessible walk-up ATMs, including all buttons, touchscreens, receipt dispensers, card slots, cash slots, and deposit slots, must be between 15 and 48 inches from the ground to comply with the 2010 Standards.
Do ATMs have to have voice guidance?
Yes. Accessible ATMs must have voice guidance and must include Braille instructions that explain how to initiate the voice guidance features.
Are there any tax breaks to help businesses comply with Title III of the ADA?
Yes. To assist small businesses in complying with the ADA, the Internal Revenue Service (IRS) Code includes a Disabled Access Credit (Section 44) for businesses with 30 or fewer full-time employees or with total revenues of $1 million or less in the previous tax year. Eligible expenses may include the cost of undertaking barrier removal to improve accessibility, providing sign-language interpreters, or making material available in accessible formats such as Braille, audiotape, or large print.
Section 190 of the IRS Code provides a tax deduction for businesses of all sizes for costs incurred in removing architectural barriers in existing facilities. The maximum deduction is $15,000 per year.