# 80 II-1.3000 II-5.2000 III-1.7000 May 26, 1993 The Honorable Don Young U. S. House of Representatives 2331 Rayburn Building Washington, D.C. 20515 Dear Congressman Young: This is in response to your recent letter on behalf of your constituent, XXXXXXXXXXXX, who suggests that the Americans with Disabilities Act of 1990 (ADA) should be amended to consider the needs of each business in determining what demands businesses, especially small businesses, should be required to meet in order to comply with the law. The ADA provides civil rights protections to individuals with disabilities, and includes requirements applicable to both State and local governmental entities under title II of the ADA, and to private businesses under title III of the ADA. The ADA also authorizes the Department of Justice to provide technical assistance to individuals and entities with rights or obligations under the Act. This letter provides informal guidance to assist your constituent in understanding the ADA's requirements. However, it does not constitute a legal interpretation and is not binding on the Department. Title II of the ADA prohibits discrimination against qualified individuals with disabilities in all programs, activities, and services conducted by or on behalf of State and local governments, as explained in section 35.149 of the title II regulation (copy enclosed). The concept of program accessibility is discussed in section II-5.000 of the enclosed title II Technical Assistance Manual. Title III of the ADA prohibits discrimination on the basis of disability by private entities that own, lease, lease to, or operate places of public accommodation (such as restaurants, hotels, retail stores, or private schools) and establishes requirements for the new construction and alteration of places of public accommodation and commercial facilities (such as factories and warehouses). Copies of the title III regulation and Technical Assistance Manual are also enclosed. As your constituent urges, it is important that a law such as the ADA recognize that the ability of a business to make changes is affected by a number of factors, and, in particular, by the resources available to that business. The ADA was drafted with that point in mind and reflects throughout a careful balance between the rights of individuals with disabilities and the legitimate concerns of affected businesses. For example, in existing facilities that are not otherwise being altered, the ADA only requires businesses to remove architectural barriers when such barrier removal is "readily achievable", that is, "easily accomplishable and able to be carried out without much difficulty or expense." In determining whether something is readily achievable, the regulation explicitly permits a business to consider a number of factors, including the cost of the proposed action and the resources available to the business, either directly, or through a parent corporation. See section 36.104 of the title III regulation. Similarly, section 35.150(a)(3) of the title II regulation provides that a State or local government is not required to take any action that it can demonstrate would result in undue financial and administrative burdens. Other limitations on the obligations of covered entities occur throughout the ADA. The two enclosed Technical Assistance Manuals should assist Mr. XXXX in determining more accurately the extent of his obligations under the ADA. Although the Department of Justice is not able to issue determinations regarding the obligations of specific parties under the ADA, you may wish to suggest to your constituent that he further explore with his tenant, the Alaska Department of Fish and Game, the exact nature of the changes that should be made in the Galena facility. The ADA does not require that existing facilities be brought up to the standards for new construction. As pointed out above, State and local governments are required to ensure "program access", that is, to make certain that the programs and activities of the entity, when viewed in their entirety, are available to citizens with disabilities. As discussed in the title II Technical Assistance Manual, it may be possible to achieve program access by methods other than physical alterations. For example, a government service that is provided in an inaccessible second floor location could be moved to the first floor when service is required by an individual who is unable to climb steps. Also, while a precise determination of the responsibilities of the parties in this particular situation would require an analysis of the lease, in general, a title III (private) landlord does not take on the obligations of a title II (government) tenant merely by leasing space to that tenant. For example, if a private landlord is leasing an existing office building that does not contain any places of public accommodation (that is, a building that is purely a commercial facility) to a governmental entity, the landlord's only ADA obligations with respect to that building arise when the landlord makes alterations to the building. When such alterations are made, the ADA requires that the landlord follow the accessibility standards that are included as Appendix A to the title III regulation. The government tenant's obligations arise independently under title II. Again, the lease itself may impose additional obligations on the landlord, but these obligations are not affected by the ADA. I hope this information will be useful to you in responding to your constituent. Sincerely, James P. Turner Acting Assistant Attorney General Civil Rights Division Enclosures (4)