Overview of Titles II & III of the Americans With Disabilities

Act (ADA)

Arizona Center for Disability Law

Natalie Franklin,

Information & Referral Supervisor

Who is eligible for ADA Protections?

“Qualified Individual with a disability;” An individual who has a physical or mental

impairment that substantially limits a major life activity -OR-

Has a record of such an impairment -OR- Is regarded as having such an impairment In order to be “qualified,” the person must

meet the essential eligibility requirements for the program or service.

Title II – “Public Entities”

42 U.S.C. Part 12131

The U.S. Department of Justice has promulgated regulations to implement Title II of the ADA, at 28 C.F.R. Part 35.

Examples of Covered Programs and Entities

State CourtsState LegislaturesTown MeetingsPolice and Fire DepartmentsDepartment of Motor VehiclesState Prisons and Jails

State offices and programs, ie: DES, CPSPublic Postsecondary schools, ie: ASU, UofA, Community Colleges

Overview of Requirements

May not refuse to allow a person with a disability to participate in a program, service or activity;Must provide services in an integrated setting, unless separate program is necessary to ensure equal opportunity;Must eliminate eligibility criteria that screen out or tends to screen out persons with disabilities.

Requirements…

Must make reasonable modifications in policies, practices and procedures to ensure equal access;

Must provide “effective communication,” and auxiliary aids and services when required to ensure effective communication.

Examples of Auxiliary Aids and Services

Qualified Interpreters;

Assistive Listening Devices;

Captioning;

TDD/TTY and Relay

Alternative formats, ie: taped text;

Brailled materials

Additional Requirements

Must not impose charges on individuals with disabilities to provide modifications;

May provide special benefits beyond those required by regulations;

Shall operate programs, when viewed in their entirety, to be readily accessible to and usable by persons with disabilities.

Essential Eligibility Requirements

Will depend on the type of service or activity involved – in example:Food Stamps, must meet financial eligibility and other criteriaPublic postsecondary schools, must meet the academic and technical requirements for admission or participation, with or without reasonable accommodations.

Program Access

Must ensure that individuals with disabilities are not excluded from services, programs and activities because of inaccessibility.

Integrated Programs

May not provide separate program unless necessary for effective services;Even if separate program is permitted, person with a disability has the right to choose to participate in regular program;May not require a person with a disability to accept a special accommodation if they choose not to.

Physical Accessibility

“Existing facilities” are those constructed for first occupancy prior to January 26, 1992.

Must remove architectural barriers that are readily achievable

Must provide program access where barrier removal is not readily

achievable

Examples of Alternative Methods

Relocating a service to an accessible floor or facility;

Providing an aide or personal assistance to enable a person with a disability to obtain a service;

Provide the service at home

New Construction and Alterations

Those facilities designed and constructed for first occupancy after January 26, 1992Those facilities or portions of facilities altered after January 26, 1992

Must ensure buildings are free of architectural barriers, using either the Uniform Federal Accessibility Standards

(UFAS) or the ADA Accessibility Guidelines (ADAAG).

*ADAAG and UFAS at: www.access-board.gov

Limits of Duty to Provide Access

Public entities are not required to take any action that would result in an “undue financial or administrative burden,” or “fundamentally alter” the nature of the program, activity or service.

Must take other necessary action to ensure equal access.

Enforcement

ADA Grievance procedures must be adopted and published by public entities that employ 50 or more persons, to provide for “prompt and equitable resolution” of complaints alleging a violation of Title II of the ADA.

Must designate a responsible employee to carry out these responsibilities.

Enforcement…

Administrative procedures –Complaints can be filed with the U.S. Department of Justice (DOJ), and/or with the federal agency providing federal financial assistance. One is not required to exhaust administrative remedies.DOJ provides technical assistance, investigation, mediation, settlement and litigation on behalf of the United States.

* Complaint must be filed within 180 days of the date of the discrimination.

Enforcement…

Lawsuits – Individuals can bring lawsuits to enforce their

rights under Title II.

Remedies include:Injunctive relief;Monetary damages (Ninth Circuit requires the discrimination to be intentional to obtain

monetary relief);Reasonable attorneys fees to the prevailing Plaintiff.

Title III – “Places of Public Accommodation”

42 U.S.C. Part 12181

U.S. Department of Justice’s implementing regulations, at 28 C.F.R. Part 36.

Examples of Covered Programs and Entities

Grocery, department or other retail store;

Hotel, motel or other place of lodging;

Restaurant, bar or nightclub;

Movie theatre or concert venue;

Professional office, ie: accountant, lawyer;

Private Postsecondary Schools, ie: Apollo College, UTI, etc.

Overview of Requirements

Must ensure that new facilities are designed to be accessible (ADAAG);

Must remove barriers in existing facilities when it is “readily achievable.”

Requirements…

Must make reasonable modifications in practices, policies and procedures to ensure qualified persons with disabilities have an equal opportunity to benefit from the goods, programs and services.

Must provide “effective communication” and “appropriate auxiliary aids and services.”

Must provide services in an integrated setting.

Limits of Duty to Provide Access

Need not take actions that constitute a “fundamental alteration” or an undue financial or administrative burden.

Need not provide personal devices, such as a wheelchair or hearing aid, or services of a personal nature, ie: assistance with eating, toileting or dressing.

May deny access if person presents a direct threat to health or safety of others.

Essential Eligibility Requirements

Will depend on the service or activity involved – in example:

Restaurant, only ‘requirement’ is that the person intends on purchasing food or drink;

Hotel, the person plans to book and pay for lodging.

Physical Accessibility and Architectural Barriers

“Existing Facilities,” are those constructed for first occupancy prior to January 26, 1993.

Must remove architectural barriers where it is readily achievable

Alterations to the buildings must be completed to ensure accessibility “to the

maximum extent feasible.” Both landlord and tenant have

responsibility to remove barriers.

New Construction Requirements

Those facilities designed and constructed after January 26, 1993 must be designed and constructed in compliance with the ADA Accessibility Guidelines (ADAAG).

Enforcement

File a complaint of discrimination with the Arizona Attorney General’s Office, Civil Rights Division under the state’s Arizonans With Disabilities Act (AzDA), by calling:(602) 542-5263 or TDD: (602) 542-5002 in Phoenix, -or- (520) 628-6500 or TDD: (520) 628-6872 in Tucson.

* Complaints must be filed within 180 days from the date of the discrimination.

Enforcement…

File a complaint with the U.S. Department of Justice (DOJ) alleging violation of Title III of the ADA.

Complete the document, “How to File a Title III Complaint,” and mail it to the address specified on page 3 of that document. There is no deadline for filing this complaint, but we urge you to do so as soon as possible to preserve your rights.

Enforcement…

File a complaint with the Arizona District of the U.S. Attorney’s Office, under Title III of the ADA, by calling (800) 800-2570. There is no deadline in which to file this complaint, but again, we urge you to do so as soon as possible to preserve your rights.

Enforcement…

Lawsuits –

Individuals can bring lawsuit to enforce their rights under Title III. The deadline for filing a lawsuit may be one or two years from the date of discrimination; the law is unsettled on this point. We urge you to file within 1 year to protect your rights.

Enforcement…

Lawsuits, Continued –

The remedy available for a lawsuit under Title III is an injunction, which is a measure to prevent future discrimination. For instance, the Court could order that a facility install a ramp to ensure physical access, or provide an interpreter to ensure effective communication.

Enforcement…

In a lawsuit alleging violations of the Arizonans With Disabilities Act (AzDA), compensatory damages and reasonable attorneys’ fees may be awarded, as well as punitive damages for distress caused by the discrimination.

Links and Resources

U.S. Department of Justice ADA Home Page: www.usdoj.gov/crt/ada/adahom1.htmU.S. Access Board: www.access-board.govU.S. Department of Health and Human Services Discrimination Complaint Form: www.hhs.gov/ocr/disform.htmlU.S. Department of Education, Office of Civil Rights: www.ed.gov/about/offices/list/ocr/complaintprocess.html

Links and Resources

Arizona Attorney General’s Office, Civil Rights Division: www.azag.gov/civil_rights/index.html

Arizonans With Disabilities Act, ARS 41-1492.02: www.azleg.state.az.us/ars/ars.htm

Findlaw (legal resources, citations, statutes and links): www.findlaw.com

Arizona Center for Disability Lawwww.azdisabilitylaw.org

Phoenix:3839 N. Third Street, Ste. 209Phoenix, Arizona 85012(602) 274-6287 (Voice, Relay or TTY)(800) 927-2260 (Voice, Relay or TTY)

Tucson:100 N. Stone Ave., Ste. 305Tucson, Arizona 85701 (520) 327-9547 (Voice, Relay or TTY)(800) 922-1448 (Voice, Relay or TTY)