ACCESS EQUALS OPPORTUNITY
The Americans with Disabilities Act (ADA) has changed the way Americans do business. Enacted in 1990, the ADA calls for businesses to make their facilities, goods, and services accessible to all, including people with disabilities. The ADA is good business because access for everyone is the key to attracting new customers and retaining those you now serve.
In the last census, 48.9 million Americans identified themselves as people with disabilities. These Guides will help you to attract that new market and to comply cheaply and easily with requirements of the public accommodations section of the Act. A barrier, whether physical or procedural, inhibits customers. Our "Access Equals Opportunity" series offers businesses suggestions for "readily achievable" - cheap and easy - ways to remove these barriers on an industry-specific basis.
These Guides were produced by a cooperative effort between business and disability groups. They offer practical answers to frequently asked questions about a wide variety of business industries. The Better Business Bureau system, in the spirit of voluntary compliance and the promotion of ethical business practices, sponsored information gathering meetings to discuss the issues that follow.
The Council of Better Business Bureaus' Foundation and the Disability Rights Education and Defense Fund (DREDF) have joined together in a national partnership for compliance. The U.S. Department of Justice provided the initial funding and technical support for this series of nine guides.
The Council of Better Business Bureaus' members are 350 national corporations and the 166 Better Business Bureaus and branches around the country whose members are 250,000 small and mid-sized businesses. The Council's Foundation is an education and research organization.
DREDF is a national law and policy center dedicated to furthering the civil rights of people with disabilities. It is managed and directed by people with disabilities and parents of children with disabilities. DREDF is universally credited for their leadership in the passage of the ADA.
The Foundation and DREDF are working together to promote voluntary compliance with the Act. While businesses that fail to comply are subject to administrative complaints, lawsuits, and fines, those who read this Guide will learn how to comply effectively and how to enlarge their customer base.
We thank all who helped produce this Guide: various Better Business Bureaus; the participating local business and disability leaders; the staff and consultants of the Council of Better Business Bureaus, the Foundation, and DREDF; and the staff of the Civil Rights Division of the U.S. Department of Justice.
OVERVIEW OF THE AMERICANS WITH DISABILITIES ACT
The Americans with Disabilities Act of 1990 (ADA) is the nation's first comprehensive civil rights law for people with disabilities. The ADA changes the way America does business.
The ADA aims to eliminate discrimination against people with disabilities by ensuring equal opportunity in employment, state and local government services and programs, places of public accommodation, public and private transportation, and telecommunications. This publication provides an overview of Title III of the Act, Public Accommodations, with a specific emphasis on requirements for existing facilities and current service practices.
Who is protected?
Under the ADA, a person with a disability is someone with a physical or mental impairment that substantially limits one or more major life activities, or someone with a record of such impairment, or one who is regarded as having such an impairment.
Examples of disabilities include orthopedic, visual, speech, and hearing impairments; cerebral palsy; epilepsy; muscular dystrophy; multiple sclerosis; cancer; heart disease; diabetes; mental retardation, psychiatric disability; specific learning disabilities; HIV disease (whether symptomatic or asymptomatic); tuberculosis; drug addiction (although people who are currently illegally using drugs are not covered); and alcoholism.
What are "Public Accommodations" under the ADA?
Title III of the ADA specifies twelve types of entities that, regardless of size, are public accommodations: places of lodging, exhibition or entertainment, public gathering, public display or collection, recreation, and exercise; private educational institutions; establishments serving food or drink; sales or rental establishments; services establishments; stations used for specific public transportation; and social services center establishments.
When must public accommodations comply with ADA?
Title III went into effect on January 26, 1992, for all covered businesses, including small ones. However, small businesses have been given a grace period before legal action can be taken against them. For businesses with 10 or fewer employees and gross annual receipts of less than $500,000, the grace period extends until January 26, 1993. This grace period does not apply to violations of the ADA's requirements for new construction or alterations.
Actions that are discriminatory
The ADA identifies actions that discriminate against people with disabilities. In general, denial of the right to participate and unequal or separate treatment are prohibited by the ADA. For example, a business cannot ask a person with a disability to leave because an employee or another customer is uncomfortable with that person's disability or because its insurance company conditions coverage or rates on the absence of people with disabilities. Nor, for example, can people with disabilities be limited to attending only certain performances at a theater.
Services in an integrated setting
Title III requires that public accommodations provide their services to people with disabilities in the most integrated setting possible.
Reasonable modifications to policies, practices, and procedures
Public accommodations are required to make reasonable modifications to their policies, practices, and procedures in order to make their goods and services available to people with disabilities unless the business can demonstrate that a modification would fundamentally alter the nature of the goods or services provided. For example, if only one aisle in a grocery store is accessible and it is an express aisle limited to customers purchasing fewer than ten items, the store must permit a customer who uses a wheelchair to make his or her purchase at the express lane, regardless of the number of items.
A public accommodation is not allowed to apply eligibility criteria for its goods or services that tend to, or that actually do, screen out people with disabilities except when the criteria are necessary to provide the goods or services that are being offered. For example, a grocery store cannot require a driver's license as the sole acceptable document for identification for payment by check. This policy would discriminate against people with disabilities such as blindness who are ineligible to obtain a drive's license. An exception to the policy must be made to permit these customers to present another form of identification.
The ADA also requires that any criteria used be applied fairly and equally to all members of the public. It prohibits public accommodations from basing their eligibility criteria on assumptions that would unnecessarily exclude individuals with disabilities who, in fact, are eligible to participate in an activity.
Effective communication with the public
Public accommodations are required to communicate effectively with customers or clients who are deaf or hard of hearing or who have speech or vision impairments by whatever means are appropriate. In the ADA, the term "auxiliary aids and services" refers to the means for achieving effective communication. This term includes sign language interpreters; written materials; assistive listening devices; Telecommunication Devices for the Deaf (TDDs); taped, Brailled, or large print materials; readers; and other communication tools.
The auxiliary aid requirement is a flexible one. The goal is to find an effective means of communication that is appropriate for the particular circumstance. For example, jotting down a grocery store's special sales on a note pad for a deaf customer may suffice, but this means of communication might not be appropriate in complex transactions.
A business is not required to provide any particular auxiliary aid or service that it can demonstrate would fundamentally alter the nature of the goods or services being provided or would result in an undue burden on the business. It must, however, provided those needed auxiliary aids and services that would not result in an undue burden. "Undue burden" is defined as significant difficulty or expense when considered in light of a variety of factors including the nature and cost of the auxiliary aid or service and the overall financial and other resources of the business. The undue burden standard is intended to be applied on a case-by-case basis.
Removal of architectural barriers in existing facilities -- What is "Readily Achievable"?
Public accommodations are required to remove architectural barriers-those elements of a facility that impede access by people with disabilities-to ensure access for customers, clients, or patrons where it is possible to do so in a readily achievable manner. Examples of barriers are curbs and steps; narrow exterior and interior doorways and aisles; rest room doorways and stalls that are too narrow for use by a person who uses a wheelchair; and inaccessible drinking fountains and telephones.
The ADA defines "readily achievable" as "easily accomplishable and able to be carried out without much difficulty or expense." Examples of barrier removal possibilities include providing a ramp for one or even several steps, widening doorways, reconfiguring display shelves to increase aisle width, widening bathroom doorways, moving toilet stall partitions, and installing grab bars.
The readily achievable standard does not require barrier removal that involves extensive restructuring or burdensome expense. Required barrier removal for a particular public accommodation will depend on its financial and other resources. The readily achievable standard is intended to be a flexible one that is applied on a case-by-case basis.
The Department of Justice (DOJ) has recommended an order of priorities for barrier removal that it urges businesses to follow. First, provide access from parking areas, sidewalks, and entrances to the public accommodation so a person with a disability can "get through the door." Second, provide access to those areas where goods and services are provided. Third, provided access to rest room facilities when they are open to the public. Fourth, take other measures to provide access to the goods, services, or facilities.
The questions and answers in this Guide are organized according to these priorities.
Landlord and tenant-Allocation of responsibility for complying with Title III of the ADA
Both the landlord who owns the building where a public accommodation is located and the tenant who owns or operates the public accommodation are responsible for compliance with Title III. They may allocate between themselves the responsibility for meeting their mutual obligations however they wish.
Allocation of responsibilities between landlord and tenant for removing barriers when readily achievable, providing auxiliary aids and services, and modifying policies, both in common areas as well as within places of public accommodation, may be determined by the lease or other contract between the parties. Alterations clauses in a lease often spell out what a tenant is allowed to do within leased space, while compliance clauses allocate responsibility to one party or another for compliance with federal, state, and local laws.
Tenants are advised to review ADA obligations with their landlords. Those tenants who are entering into new leases should negotiate and allocate responsibility for ADA compliance with their landlord. Failure to determine, allocate, and execute ADA responsibility may result in either the tenant's or landlord's liability for noncompliance.
The Americans with Disabilities Act Accessibility Guidelines (ADAAG) issued by the Architectural and Transportation Barriers Compliance Board can serve as a guide for identifying the various kinds of measures that can be taken to remove barriers and as a guide for how best to remove them.
If there are steps to the front entrance and the front door is very narrow, businesses must provide a ramp and widen the door according to ADAAG standards if it is readily achievable to do so. If it is not readily achievable to follow the ADAAG standards for ramps and doorways, public accommodations must take other safe, readily achievable measures, such as installation of a slightly narrower door or a slightly steeper ramp than that permitted by the ADAAG. Although these barrier removal measures would not meet the ADAAG standards for alterations, they would nevertheless afford significant access for many customers or clients.
Where some elements of a facility come very close to meeting the ADAAG standards and others fall far short, public accommodations are advised to put first priority on removing the barriers that most deviate from ADAAG standards. For example, if the front entrance already has a ramp that is just slightly steeper than that permitted by the ADAAG and the front door is just slightly narrower than that permitted by the ADAAG, but elements in interior areas that serve clients or customers are wholly inaccessible, public accommodations should turn their attention first to the barriers that are the biggest impediments for their customers or clients. They should remove those that can be removed in a readily achievable manner before turning their attention to elements that deviate only slightly from the ADAAG standards.
It is a good idea for public accommodations to become familiar with the full array of access concerns that the ADAAG addresses.
Barrier removal and effective communication -- A continuing obligation
Readily achievable barrier removal is a continuing obligation. Barrier removal that was not readily achievable initially may later be required because the public accommodation has more resources available. Therefore, a public accommodation must continually monitor its accessibility as well as its financial and other resources and engage in barrier removal as new measures become readily achievable.
Achieving effective communication for people with disabilities is also a continuing obligation. Auxiliary aids that were not required initially because they posed an undue burden may be required later in light of changing resources or changing technologies.
If providing access by removing barriers is not readily achievable, the law requires public accommodations to provide readily achievable alternatives to barrier removal. For example, if barriers in a grocery store cannot be eliminated, the grocery store could provide assistance at the check-out counter or offer curbside service.
Public accommodations may not assess any surcharges on individuals with disabilities for auxiliary aids and services, barrier removal, or alternative measures taken in lieu of barrier removal.
Alterations of existing facilities
Title III requires that physical alterations to public accommodations undertaken after January 26, 1992, be readily accessible to and usable by people with disabilities to the maximum extent feasible. The term "alterations" refers to changes a business is undertaking for its own purposes, such as renovation, and does not refer to steps a business takes to comply with the ADA's requirements for barrier removal. Alterations do not include normal maintenance. Alterations that affect or could affect usability are required to be accessible.
When alterations are made to "primary function areas"-work areas and areas used by the public-alterations must also be made to provide an accessible path of travel to the altered areas. "Path of travel" means access to rest rooms, telephones, and drinking fountains serving the area. The cost of providing an accessible path of travel need not exceed 20 percent of the total cost of the original alteration.
All newly constructed facilities must be readily accessible to and usable by people with disabilities if a completed application for a building permit or permit extension was filed after January 25, 1992, and the facility is occupied after January 26, 1993.
The technical standards for accessible new construction and alterations are set out in the ADAAG.
What do these requirements of the ADA mean to you?
Congress and DOJ recognize that businesses not only are unique but also have different financial and other resources. Although most public accommodations will have to do something comply with the ADA, the law allows businesses to determine on a case-by-case basis what steps must be taken to comply.
Here are a few simple steps that DOJ recommends for getting started:
- Contact organizations of or for people with disabilities in your community to help identify physical barriers to your facility or your goods or services and to familiarize you with various kinds of auxiliary aids and services that can help you communicate effectively with your customers or clients.
- Make a list of architectural, policy, and communication barriers.
- In consultation with organizations of or for people with disabilities, set priorities for removing architectural barriers, changing any discriminatory policies, and providing effective communication.
- Develop an implementation plan designed to achieve compliance with the ADA. Such a plan, if appropriately designed and diligently executed, could serve as evidence of a good faith effort to comply.
Congress also has amended the Internal Revenue Code to include tax incentives for businesses that incur expenses in removing barriers or increasing accessibility for people with disabilities. The "Tax Deduction to Remove Architectural and Transportation Barriers to People with Disabilities and Elderly Individuals" (Title 26, Internal Revenue Code, Section 190) allows a deduction for "qualified architectural and transportation barrier removal expenses" not to exceed $15,000 for any taxable year. The "Disabled Access Tax Credit" (Title 26, Internal Revenue Code, Section 44) is available to eligible small businesses with 30 or fewer employees or $1 million or less in gross annual receipts. This provision allows a tax credit of 50 percent of eligible access expenditures that exceed $250 but do not exceed $10,250 made for the purpose of complying with the ADA during the tax year.
For more information on these tax provisions, contact the Internal Revenue Services, Office of the Chief Counsel, P.O. Box 7604, Ben Franklin Station, Washington, DC 20044, 202-622-3110 (voice only).
Please note that this Guide provides only an overview of the ADA. There may be other requirements that are not discussed there but that do apply to your business. Detailed information about business' obligations with respect to employment are not covered, and requirements for new construction and alterations of existing facilities are discussed only briefly.
Republished with permission of the owner, Council of Better Business Bureaus, Inc., 4200 Wilson Blvd, Ste. 800, Arlington, VA 22203, www.bbb.org
Questions about Public Accommodations laws and enforcement? Contact the King County Office of Civil Rights, 206-296-7592, TTY 296-7596.