Ensuring Access: the Americans with Disabilities Act
Prof. Joseph Smith
Nova Southeastern University Shepard Broad Law Center

I. The legal obligation to make newly constructed buildings, new renovations to existing buildings, and existing buildings accessible to people with disabilities.

A. Federal law

1. Section 504 of the Rehabilitation Act of 1973 (Section 504)

2. Americans with Disabilities Act of 1990 (ADA)

B. State law

2. Why should buildings be made accessible to people with disabilities?

A. What is the significance of Section 504 and the ADA being designated Civil Rights laws?

B. What are the attitudes of individuals with disabilities concerning accessibility issues?

3. How to make a building accessible to individuals with disabilities.

A. Goals to consider

B. Sources of information

4. Relevant Selections of federal law

A. Rehabilitation Act of 1973

1. 29 U.S.C.A Sec. 794
Sec. 794. Nondiscrimination under federal grants and programs; promulgation of rules and regulations
(a) No otherwise qualified individual with disabilities in the United States, as defined in section 706(20) of this title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefit of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by an Executive agency...

B. Selections from ADA

1. Definition of disability
42 USC 126 Section 12102(2)

(2) Disability
The term "disability" means, with respect to an individual--

(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment.

5. Selections from Title I Employment

(A) Definitions

i. section 12102(8) Qualified individual with a disability--The term "qualified individual with a disability" means an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires...

ii. section 12102(9) Reasonable accommodation-The term "reasonable accommodation" may include (A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities;

iii. Section 12102(10) Undue hardship-
(A) in general
The term "undue hardship" means an action requiring significant difficulty or expense, when considered in light of the factors set forth in subparagraph (B).

(B) Factors to be considered
In determining whether an accommodation would impose an undue hardship on a covered entity, factors to be considered include--

(i) the nature and cost of the accommodation needed under this chapter;

(ii) the overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility;

(iii) the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and

(iv) the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity. 

(B) Discrimination

i. Section 12112 (a) General rule
No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.

As used in subsection (a) of this section, the term "discriminate" includes--(5)(A) not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity. 

6. TITLE II PUBLIC SERVICES

(A) Definitions

i. (1) Public entity
The term "public entity" means--

(A) any State or local government;

(B) any department, agency, special purpose district, or other instrumentality of a State or States or local government; and

(C) the National Railroad Passenger Corporation, and any commuter authority (as defined in Sec. 103(8) of the Rail Passenger Service Act [45 U.S.C. 502(8)]).

ii. (2) Qualified individual with a disability

The term "qualified individual with a disability" means an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.

Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.

7. TITLE III--PUBLIC ACCOMMODATIONS AND SERVICES OPERATED BY PRIVATE ENTITIES

(A) definitions

i. section... (2) Commercial facilities
The term "commercial facilities" means facilities--(A) that are intended for nonresidential use; and whose operations will affect commerce.

The following private entities are considered public accomodations for purposes of this subchapter, if the operations of such entities affect commerce--(J) a nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education

ii. section...(9) Readily achievable
The term "readily achievable" means easily accomplishable and able to be carried out without much difficulty or expense. In determining whether an action is readily achievable, factors to be considered include--

(A) the nature and cost of the action needed under this chapter;

(B) the overall financial resources of the facility or facilities involved in the action; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such action upon the operation of the facility;

(C) the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative or fiscal relationship of the facility or facilities in question to the covered entity.

(B) Discrimination

i. Sec. 12182 Prohibition of discrimination by public accommodations

(a) General rule
No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.

(2) Specific prohibitions
(A) Discrimination
For purposes of subsection (a) of this section, discrimination includes--(iv) a failure to remove architectural barriers, and communication barriers that are structural in nature, in existing facilities where such removal is readily achievable

ii. Sec. 12183 New construction and alterations in public accommodations and commercial facilities

(a) Application of term
Except as provided in subsection (b) of this section, as applied to public accommodations and commercial facilities, discrimination for purposes of Sec. 12182(a) of this title includes--

(1) a failure to design and construct facilities for first occupancy later than 30 months after July 26, 1990 that are readily accessible to and usable by individuals with disabilities, except where an entity can demonstrate that it is structurally impracticable to meet the requirements of such subsection in accordance with standards set forth or incorporated by reference in regulations issued under this subchapter; and

(2) with respect to a facility or part thereof that is altered by, on behalf of, or for the use of an establishment in a manner that affects or could affect the usability of the facility or part thereof, a failure to make alterations in such a manner that, to the maximum extent feasible, the altered portions of the facility are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs. Where the entity is undertaking an alteration that affects or could affect usability of or access to an area of the facility containing a primary function, the entity shall also make the alterations in such a manner that, to the maximum extent feasible, the path of travel to the altered area and the bathrooms, telephones, and drinking fountains serving the altered area, are readily accessible to and usable by individuals with disabilities where such alterations to the path of travel or the bathrooms, telephones, and drinking fountains serving the altered area are not disproportionate to the overall alterations in terms of cost and scope (as determined under criteria established by the Attorney General).

(b) Elevator
Subsection (a) of this section shall not be construed to require the installation of an elevator for facilities that are less than three stories or have less than 3,000 square feet per story unless the building is a shopping center, a shopping mall, or the professional office of a health care provider or unless the Attorney General determines that a particular category of such facilities requires the installation of elevators based on the usage of such facilities.

(b) Exemptions from coverage
Sec. 12187 Exemptions for private clubs and religious organizations
The provisions of this subchapter shall not apply to religious organizations or entities controlled by religious organizations, including places of worship.