Frequently Asked Questions about Titles II and
III of the ADA
State and Local Governments
Q. Does the ADA apply to State and local governments?
A. Title II of the ADA prohibits discrimination against qualified
individuals with disabilities in all programs, activities, and
services of public entities. It applies to all State and local
governments, their departments and agencies, and any other instrumentalities
or special purpose districts of State or local governments. It
clarifies the requirements of section 504 of the Rehabilitation
Act of 1973 for public transportation systems that receive Federal
financial assistance, and extends coverage to all public entities
that provide public transportation, whether or not they receive
Federal financial assistance. It establishes detailed standards
for the operation of public transit systems, including commuter
and intercity rail (AMTRAK).
Q. When do the requirements for State and local governments
become effective?
A. In general, they became effective on January 26, 1992.
Q. How does title II affect participation in a State or local
government's programs, activities, and services?
A. A state or local government must eliminate any eligibility
criteria for participation in programs, activities, and services
that screen out or tend to screen out persons with disabilities,
unless it can establish that the requirements are necessary for
the provision of the service, program, or activity. The State
or local government may, however, adopt legitimate safety requirements
necessary for safe operation if they are based on real risks,
not on stereotypes or generalizations about individuals with disabilities.
Finally, a public entity must reasonably modify its policies,
practices, or procedures to avoid discrimination. If the public
entity can demonstrate that a particular modification would fundamentally
alter the nature of its service, program, or activity, it is not
required to make that modification.
Q. Does title II cover a public entity's employment policies
and practices?
A. Yes. Title II prohibits all public entities, regardless
of the size of their work force, from discriminating in employment
against qualified individuals with disabilities. In addition to
title II's employment coverage, title I of the ADA and section
504 of the Rehabilitation Act of 1973 prohibit employment discrimination
against qualified individuals with disabilities by certain public
entities
Q. What changes must a public entity make to its existing facilities
to make them accessible?
A. A public entity must ensure that individuals with disabilities
are not excluded from services, programs, and activities because
existing buildings are inaccessible. A State or local government's
programs, when viewed in their entirety, must be readily accessible
to and usable by individuals with disabilities. This standard,
known as "program accessibility," applies to facilities
of a public entity that existed on January 26, 1992. Public
entities do not necessarily have to make each of their existing
facilities accessible. They may provide program accessibility
by a number of methods including alteration of existing facilities,
acquisition or construction of additional facilities, relocation
of a service or program to an accessible facility, or provision
of services at alternate accessible sites.
Q. When must structural changes be made to attain program accessibility?
A. Structural changes needed for program accessibility must
be made as expeditiously as possible, but no later than January
26, 1995. This three-year time period is not a grace period; all
alterations must be accomplished as expeditiously as possible.
A public entity that employs 50 or more persons must have developed
a transition plan by July 26, 1992, setting forth the steps necessary
to complete such changes.
Q. What is a self-evaluation?
A. A self-evaluation is a public entity's assessment of its
current policies and practices. The self-evaluation identifies
and corrects those policies and practices that are inconsistent
with title II's requirements. All public entities must complete
a self-evaluation by January 26, 1993. A public entity that employs
50 or more employees must retain its self-evaluation for three
years. Other public entities are not required to retain their
self-evaluations, but are encouraged to do so because these documents
evidence a public entity's good faith efforts to comply with title
II's requirements.
Q. What does title II require for new construction and alterations?
A. The ADA requires that all new buildings constructed by
a State or local government be accessible. In addition, when a
State or local government undertakes alterations to a building,
it must make the altered portions accessible.
Q. How will a State or local government know that a new building
is accessible?
A. A State or local government will be in compliance with
the ADA for new construction and alterations if it follows either
of two accessibility standards. It can choose either the Uniform
Federal Accessibility Standards or the Americans with Disabilities
Act Accessibility Guidelines for Buildings and Facilities, which
is the standard that must be used for public accommodations and
commercial facilities under title III of the ADA. If the State
or local government chooses the ADA Accessibility Guidelines,
it is not entitled to the elevator exemption (which permits certain
private buildings under three stories or under 3,000 square feet
per floor to be constructed without an elevator).
Q. What requirements apply to a public entity's emergency telephone
services, such as 911?
A. State and local agencies that provide emergency telephone
services must provide "direct access" to individuals
who rely on a TDD or computer modem for telephone communication.
Telephone access through a third party or through a relay service
does not satisfy the requirement for direct access. Where a public
entity provides 911 telephone service, it may not substitute a
separate seven-digit telephone line as the sole means for access
to 911 services by nonvoice users. A public entity may, however,
provide a separate seven-digit line for the exclusive use of nonvoice
callers in addition to providing direct access for such calls
to its 911 line.
Q. Does title II require that telephone emergency service systems
be compatible with all formats used for nonvoice communications?
A. No. At present, telephone emergency services must only
be compatible with the Baudot format. Until it can be technically
proven that communications in another format can operate in a
reliable and compatible manner in a given telephone emergency
environment, a public entity would not be required to provide
direct access to computer modems using formats other than Baudot.
Q. How will the ADA's requirements for State and local governments
be enforced?
A. Private individuals may bring lawsuits to enforce their
rights under title II and may receive the same remedies as those
provided under section 504 of the Rehabilitation Act of 1973,
including reasonable attorney's fees. Individuals may also file
complaints with eight designated Federal agencies, including the
Department of Justice and the Department of Transportation.
Public Accommodations
Q. What are public accommodations?
A. A public accommodation is a private entity that owns, operates,
leases, or leases to, a place of public accommodation. Places
of public accommodation include a wide range of entities, such
as restaurants, hotels, theaters, doctors' offices, pharmacies,
retail stores, museums, libraries, parks, private schools, and
day care centers. Private clubs and religious organizations are
exempt from the ADA's title III requirements for public accommodations.
Q. Will the ADA have any effect on the eligibility criteria
used by public accommodations to determine who may receive services?
A. Yes. If a criterion screens out or tends to screen out
individuals with disabilities, it may only be used if necessary
for the provision of the services. For instance, it would be a
violation for a retail store to have a rule excluding all deaf
persons from entering the premises, or for a movie theater to
exclude all individuals with cerebral palsy. More subtle forms
of discrimination are also prohibited. For example, requiring
presentation of a driver's license as the sole acceptable means
of identification for purposes of paying by check could constitute
discrimination against individuals with vision impairments. This
would be true if such individuals are ineligible to receive licenses
and the use of an alternative means of identification is feasible.
Q. Does the ADA allow public accommodations to take safety
factors into consideration in providing services to individuals
with disabilities?
A. The ADA expressly provides that a public accommodation
may exclude an individual, if that individual poses a direct threat
to the health or safety of others that cannot be mitigated by
appropriate modifications in the public accommodation's policies
or procedures, or by the provision of auxiliary aids. A public
accommodation will be permitted to establish objective safety
criteria for the operation of its business; however, any safety
standard must be based on objective requirements rather than stereotypes
or generalizations about the ability of persons with disabilities
to participate in an activity.
Q. Are there any limits on the kinds of modifications in policies,
practices, and procedures required by the ADA?
A. Yes. The ADA does not require modifications that would
fundamentally alter the nature of the services provided by the
public accommodation. For example, it would not be discriminatory
for a physician specialist who treats only burn patients to refer
a deaf individual to another physician for treatment of a broken
limb or respiratory ailment. To require a physician to accept
patients outside of his or her specialty would fundamentally alter
the nature of the medical practice.
Q. What kinds of auxiliary aids and services are required by
the ADA to ensure effective communication with individuals with
hearing or vision impairments?
A. Appropriate auxiliary aids and services may include services
and devices such as qualified interpreters, assistive listening
devices, notetakers, and written materials for individuals with
hearing impairments; and qualified readers, taped texts, and Brailled
or large print materials for individuals with vision impairments.
Q. Are there any limitations on the ADA's auxiliary aids requirements?
A. Yes. The ADA does not require the provision of any auxiliary
aid that would result in an undue burden or in a fundamental alteration
in the nature of the goods or services provided by a public accommodation.
However, the public accommodation is not relieved from the duty
to furnish an alternative auxiliary aid, if available, that would
not result in a fundamental alteration or undue burden. Both of
these limitations are derived from existing regulations and caselaw
under section 504 of the Rehabilitation Act and are to be determined
on a case-by-case basis.
Q. Will restaurants be required to have brailled menus?
A. No, not if waiters or other employees are made available
to read the menu to a blind customer.
Q. Will a clothing store be required to have brailled price
tags?
A. No, not if sales personnel could provide price information
orally upon request.
Q. Will a bookstore be required to maintain a sign language
interpreter on its staff in order to communicate with deaf customers?
A. No, not if employees communicate by pen and notepad when
necessary.
Q. Are there any limitations on the ADA's barrier removal requirements
for existing facilities?
A. Yes. Barrier removal need be accomplished only when it
is "readily achievable" to do so.
Q. What does the term "readily achievable" mean?
A. It means "easily accomplishable and able to be carried
out without much difficulty or expense."
Q. What are examples of the types of modifications that would
be readily achievable in most cases?
A. Examples include the simple ramping of a few steps, the
installation of grab bars where only routine reinforcement of
the wall is required, the lowering of telephones, and similar
modest adjustments.
Q. Will businesses need to rearrange furniture and display
racks?
A. Possibly. For example, restaurants may need to rearrange
tables and department stores may need to adjust their layout of
racks and shelves in order to permit access to wheelchair users.
Q. Will businesses need to install elevators?
A. Businesses are not required to retrofit their facilities
to install elevators unless such installation is readily achievable,
which is unlikely in most cases.
Q. When barrier removal is not readily achievable, what kinds
of alternative steps are required by the ADA?
A. Alternatives may include such measures as in-store assistance
for removing articles from inaccessible shelves, home delivery
of groceries, or coming to the door to receive or return dry cleaning.
Q. Must alternative steps be taken without regard to cost?
A. No, only readily achievable alternative steps must be undertaken.
Q. How is "readily achievable" determined in a multisite
business?
A. In determining whether an action to make a public accommodation
accessible would be "readily achievable," the overall
size of the parent corporation or entity is only one factor to
be considered. The ADA also permits consideration of the financial
resources of the particular facility or facilities involved and
the administrative or fiscal relationship of the facility or facilities
to the parent entity.
Q. Who has responsibility for ADA compliance in leased places
of public accommodation, the landlord or the tenant?
A. The ADA places the legal obligation to remove barriers
or provide auxiliary aids and services on both the landlord and
the tenant. The landlord and the tenant may decide by lease who
will actually make the changes and provide the aids and services,
but both remain legally responsible.
Q. What does the ADA require in new construction?
A. The ADA requires that all new construction of places of
public accommodation, as well as of "commercial facilities"
such as office buildings, be accessible. Elevators are generally
not required in facilities under three stories or with fewer than
3,000 square feet per floor, unless the building is a shopping
center or mall; the professional office of a health care provider;
a terminal, depot, or other public transit station; or an airport
passenger terminal.
Q. Is it expensive to make all newly constructed places of
public accommodation and commercial facilities accessible?
A. The cost of incorporating accessibility features in new
construction is less than one percent of construction costs. This
is a small price in relation to the economic benefits to be derived
from full accessibility in the future, such as increased employment
and consumer spending and decreased welfare dependency.
Q. Must every feature of a new facility be accessible?
A. No, only a specified number of elements such as parking
spaces and drinking fountains must be made accessible in order
for a facility to be "readily accessible." Certain nonoccupiable
spaces such as elevator pits, elevator penthouses, and piping
or equipment catwalks need not be accessible.
Q. What are the ADA requirements for altering facilities?
A. All alterations that could affect the usability of a facility
must be made in an accessible manner to the maximum extent feasible.
For example, if during renovations a doorway is being relocated,
the new doorway must be wide enough to meet the new construction
standard for accessibility. When alterations are made to a primary
function area, such as the lobby of a bank or the dining area
of a cafeteria, an accessible path of travel to the altered area
must also be provided. The bathrooms, telephones, and drinking
fountains serving that area must also be made accessible. These
additional accessibility alterations are only required to the
extent that the added accessibility costs do not exceed 20% of
the cost of the original alteration. Elevators are generally not
required in facilities under three stories or with fewer than
3,000 square feet per floor, unless the building is a shopping
center or mall; the professional office of a health care provider;
a terminal, depot, or other public transit station; or an airport
passenger terminal.
Q. Does the ADA permit an individual with a disability to sue
a business when that individual believes that discrimination is
about to occur, or must the individual wait for the discrimination
to occur?
A. The ADA public accommodations provisions permit an individual
to allege discrimination based on a reasonable belief that discrimination
is about to occur. This provision, for example, allows a person
who uses a wheelchair to challenge the planned construction of
a new place of public accommodation, such as a shopping mall,
that would not be accessible to individuals who use wheelchairs.
The resolution of such challenges prior to the construction of
an inaccessible facility would enable any necessary remedial measures
to be incorporated in the building at the planning stage, when
such changes would be relatively inexpensive.
Q. How does the ADA affect existing State and local building
codes?
A. Existing codes remain in effect. The ADA allows the Attorney
General to certify that a State law, local building code, or similar
ordinance that establishes accessibility requirements meets or
exceeds the minimum accessibility requirements for public accommodations
and commercial facilities. Any State or local government may apply
for certification of its code or ordinance. The Attorney General
can certify a code or ordinance only after prior notice and a
public hearing at which interested people, including individuals
with disabilities, are provided an opportunity to testify against
the certification.
Q. What is the effect of certification of a State or local
code or ordinance?
A. Certification can be advantageous if an entity has constructed
or altered a facility according to a certified code or ordinance.
If someone later brings an enforcement proceeding against the
entity, the certification is considered "rebuttable evidence"
that the State law or local ordinance meets or exceeds the minimum
requirements of the ADA. In other words, the entity can argue
that the construction or alteration met the requirements of the
ADA because it was done in compliance with the State or local
code that had been certified.
Q. When are the public accommodations provisions effective?
A. In general, they became effective on January 26, 1992.
Q. How will the public accommodations provisions be enforced?
A. Private individuals may bring lawsuits in which they can
obtain court orders to stop discrimination. Individuals may also
file complaints with the Attorney General, who is authorized to
bring lawsuits in cases of general public importance or where
a "pattern o practice" of discrimination is alleged.
In these cases, the Attorney General may seek monetary damages
and civil penalties. Civil penalties may not exceed $50,000 for
a first violation or $100,000 for any subsequent violation.
Miscellaneous
Q. Is the Federal government covered by the ADA?
A. The ADA does not cover the executive branch of the Federal
government. The executive branch continues to be covered by title
V of the Rehabilitation Act of 1973, which prohibits discrimination
in services and employment on the basis of handicap and which
is a model for the requirements of the ADA. The ADA, however,
does cover Congress and other entities in the legislative branch
of the Federal government.
Q. Does the ADA cover private apartments and private homes?
A. The ADA does not cover strictly residential private apartments
and homes. If, however, a place of public accommodation, such
as a doctor's office or day care center, is located in a private
residence, those portions of the residence used for that purpose
are subject to the ADA's requirements.
Q. Does the ADA cover air transportation?
A. Discrimination by air carriers in areas other than employment
is not covered by the ADA but rather by the Air Carrier Access
Act (49 U.S.C. 1374 (c)).
Q. What are the ADA's requirements for public transit buses?
A. The Department of Transportation has issued regulations
mandating accessible public transit vehicles and facilities. The
regulations include requirements that all new fixed-route, public
transit buses be accessible and that supplementary paratransit
services be provided for those individuals with disabilities who
cannot use fixed-route bus service. For information on how to
contact the Department of Transportation, see page 30.
Q. How will the ADA make telecommunications accessible?
A. The ADA requires the establishment of telephone relay services
for individuals who use telecommunications devices for deaf persons
(TDD's) or similar devices. The Federal Communications Commission
has issued regulations specifying standards for the operation
of these services.
Q. Are businesses entitled to any tax benefit to help pay for
the cost of compliance?
A. As amended in 1990, the Internal Revenue Code allows a
deduction of up to $15,000 per year for expenses associated with
the removal of qualified architectural and transportation barriers.
The 1990 amendment also permits eligible small businesses to receive
a tax credit for certain costs of compliance with the ADA. An
eligible small business is one whose gross receipts do not exceed
$1,000,000 or whose workforce does not consist of more than 30
full-time workers. Qualifying businesses may claim a credit of
up to 50 percent of eligible access expenditures that exceed $250
but do not exceed $10,250. Examples of eligible access expenditures
include the necessary and reasonable costs of removing architectural,
physical, communications, and transportation barriers; providing
readers, interpreters, and other auxiliary aids; and acquiring
or modifying equipment or devices.
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Updated 2008-07-25