V. Ada Requirements and Municipal Facilities

• Library: Municipal Law Deskbook (ABA) (2015 Ed.)

V. ADA REQUIREMENTS AND MUNICIPAL FACILITIES

A. Introduction

On July 26, 1990, President George H. W. Bush signed into law the Americans with Disabilities Act (ADA). This historic legislation was intended to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities. The ADA is intended to supplement and expand the previous federal law that applies to those with disabilities, the Rehabilitation Act. While the ADA is designed to eliminate past effects of either accessibility problems or outright discrimination, recent litigation trends indicate a more aggressive approach to these issues vis-a-vis local government's facilities, an approach that was probably not considered or appreciated when the ADA was created.

B. Relationship to the Rehabilitation Act

Drawing from the Civil Rights Act of 1963, the Rehabilitation Act (specifically, Title V thereof) was enacted to prohibit discrimination by entities receiving federal funds.¹⁹⁵ Pursuant to 28 C.F.R. § 41.51(d), recipients of federal funds are required to "administer programs and activities in the most integrated setting appropriate to the needs of qualified handicapped persons." Furthermore the Department of Justice has mandated:

No qualified handicapped person, shall, on the basis of handicap, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any program or activity that receives or benefits from federal financial assistance.¹⁹⁶

As application of the Rehabilitation Act progressed, it was felt that limiting the prohibition of discrimination to only those who received federal funding was insufficient to address the needs of the disabled. As a result, the ADA was enacted. The Rehabilitation Act is nonetheless cited and used in litigation today, in tandem with the ADA, since numerous courts have held that the same standards apply for assessing compliance with both the Rehabilitation Act and the ADA, and that prior decisions under the Rehabilitation Act are precedential to the ADA, so that the ADA and the Rehabilitation Act generally are interpreted in pari materia.¹⁹⁷

C. The ADA

The ADA provides civil rights protection to individuals with disabilities, similar to the protections provided to individuals on the basis of race, color, sex, national origin, age, and religion. At the time of its enactment, some 43 million Americans suffered from physical or mental disabilities.¹⁹⁸ Congress had determined that society had isolated and segregated individuals with disabilities.¹⁹⁹ Discrimination against individuals with disabilities was found to be persistent in critical areas such as employment, housing, public accommodations, transportation, communication, education, recreation, institutionalization, health services, voting, and access to public services.²⁰⁰

The primary purpose of the ADA was to provide a "clear and comprehensive national mandate for the elimination of discrimination" with "clear, strong, consistent, enforceable standards" to address such discrimi-nation.²⁰¹ To that end, the ADA provides individuals with disabilities "civil rights protections with respect to discrimination that are parallel to those provided to individuals on the basis of race, color, national origin, sex, and religion." ²⁰² Its principle elements were drawn from the Civil Rights Act of 1964, and from Title V of the Rehabilitation Act of 1973.²⁰³ The ADA can, therefore, be seen to employ the framework of both of those Acts for issues of coverage, enforcement, and terms and concepts for what constitutes discrimination.

The scope of the ADA covers not only intentional discrimination but also the discriminatory effects of "benign neglect, apathy, and indifference."²⁰⁴ Discrimination could, therefore, involve the active preclusion of employment based on one's disability as well as passive limited access for wheelchair-bound individuals.²⁰⁵

The ADA therefore guarantees equal opportunity for individuals with disabilities in public accommodations, employment, transportation, state and local government services, and telecommunications. The ADA is codified at 42 U.S.C. §§ 12101-12213 and is divided into five sections or "titles" that have specific provisions grouped by subject matter applicability. Title I addresses employment issues. 42 U.S.C. §§ 12111-12117. Title II addresses public programs and facilities. 42 U.S.C. §§ 12131-12134; 12141-12150; 12161-12165. Title III addresses public accommodations. 42 U.S.C. §§ 12181-12189. Title IV addresses telecommunications, and Title V is a collection of miscellaneous provisions that apply to Titles I, II, and III, as specified. 42 U.S.C. §§ 12201-12213.

D. Title II

Title II of the ADA addresses public programs and activities. Title II of the ADA protects qualified individuals with disabilities from discrimination on the basis of disability in accessing services, programs, or activities.²⁰⁶ To effect this prohibition, the statute requires certain designated federal agencies to develop implementing regulations, the first of which were promulgated in July of 1992. This rulemaking effort continues today. The regulations detail a wide range of administrative and procedural requirements, including compliance with design and construction standards. Those standards are expressed in the Americans with Disabilities Act Accessibility Guidelines (ADAAG).²⁰⁷ Title II entities may choose to comply with either the ADAAG or the Uniform Federal Accessibility Standards (UFAS) until the Department of Justice (DOJ) completes Title II rulemaking (an effort that is still underway). It is, therefore, imperative that the successful practitioner have a working knowledge of the Rehabilitation Act, the ADA, and the accompanying regulations.

E. Who Is a Disabled Person?

Under the ADA, a disabled person is one who is defined as a "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 receipt of services or the participation in programs or activities provided by a public entity.

42 U.S.C. § 12131(2). A disability is defined in the ADA, as well:

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.

42 U.S.C. § 12102(2). For further clarity, the ADA defines "auxiliary aids and services" broadly:

The term "auxiliary aids and services" includes—

(A) qualified interpreters or other effective methods of making aurally delivered materials available to individuals with hearing impairments;
(B) qualified readers, taped texts, or other effective methods of making visually delivered materials available to individuals with visual impairments;
(C) acquisition or modification of equipment or devices; and
(D) other similar services and actions.

42 U.S.C. § 12102(1). And, to be sure that there is no doubt about the applicability of the ADA (specifically, Title II), the term "public entity" is defined:

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 section 24102(4) of Title 49).

42 U.S.C. § 12131(a). With these definitions, it is clear that the broad theme of the ADA and its applicability is carried forward from its enabling legislation's stated purposes.

F. What Are the Requirements of Title II?

1. Equality in Participation and Benefits

Those with disabilities must have an equally effective opportunity to participate in or benefit from city programs, services, and activities.²⁰⁸ Examples of when disability discrimination occurs are as follows:

a. A deaf individual does not experience an equal opportunity to benefit from attending a public meeting if she does not have access to what is said through an interpreter or by using an assistive listening device.
b. Someone who uses a wheelchair will not have an equal opportunity to participate in a program if applications must be filed in a second-floor office of a government building without an elevator.
c. Use of printed information alone is not equally effective for those with low vision who cannot read regular written material.

2. Integrated Setting (Mainstreaming)

Individuals with disabilities cannot be excluded from regular programs or required to accept accommodations. The city may offer separate or special programs when necessary to provide people with disabilities an equal opportunity to benefit from the programs. Examples of such special programs include the following:

a. A recreation department sponsors a separate basketball team for wheelchair users.
b. A museum offers a tour for blind people, which permits them to touch and handle specific objects on a limited basis (but the museum cannot exclude a blind person from its standard tour).

3. Eligibility Criteria and Medical Inquiries

A city's eligibility criteria for participation in its programs, services, or activities must not screen out or tend to screen out people with disabilities, except in rare instances when such requirements are necessary. A program cannot request medical information unless it can demonstrate that each piece of information requested is needed to ensure safe participation in the program.

4. Safety

A city may impose legitimate safety requirements necessary for the safe operation of its services, programs, and activities. Safety requirements must be based on real risks...