II. The Americans with Disabilities Act

A. Background of the Americans with Disabilities Act

People affected by disabilities most often rely on other people, businesses, and governments to make daily activities such as crossing the street, reading a menu, or using an automated teller machine (“ATM”) less burdensome. Seventeen years ago, Congress passed the ADA in an effort to eliminate discriminatory barriers for the disabled in everyday living.12 In the ADA, Congress noted that millions of Americans suffer from discrimination on the basis of their mental or physical disabilities.13 Furthermore, the discrimination faced by this substantial minority of Americans impacts all aspects of their lives, including employment, housing, public accommodations, education, transportation, communication, recreation, institutionalization, health services, voting, and access to public services.14 By enacting the ADA, Congress intended to provide enforceable standards to address discrimination against the disabled in these areas, and to vest the enforcement role in the Federal Government.15

B. Title III and “Place of Public Accommodation”

Title III addresses discrimination in the context of public accommodations.16 It prohibits a place of public accommodation from denying disabled persons the “full and equal enjoyment” of that public accommodation.17 Title III is different from other anti-discrimination statutes because it requires places of public accommodation to take affirmative action to prevent discrimination against the disabled.18

The statute identifies four contexts in which discrimination by a place of public accommodation could exist.19 First, discrimination will occur when an accommodation imposes eligibility criteria which either “screen out or tend to screen out” disabled people from equal enjoyment of the accommodation.20 For example, requiring someone to be able to walk as a prerequisite for being a contestant on a television game show would be discrimination under Title III.21 Such eligibility criteria are allowed only to the extent they are necessary for the provision of goods or services being offered by the public accommodation.22 It is not necessary that contestants be ambulatory for a game show to provide the services it offers to the public.

Second, discrimination under Title III occurs if a public accommodation fails to make reasonable modifications to its policies or procedures in order to make its services or goods available to the disabled.23 However, modifications that would alter the nature of the services or goods offered by the accommodation are not required.24 In other words, a bookstore may be required to make its facilities handicapped accessible, but it would not be required to start selling books printed in Braille because such a modification alters “the nature or mix of goods” being offered by the book store.25

Third, discrimination includes failure of a public accommodation to take necessary steps to ensure disabled persons are not denied services or segregated because there are no auxiliary aids or services available at the accommodation.26 Providing auxiliary aids or services is not necessary when such a provision would fundamentally alter the goods or services of the accommodation, or would result in an undue burden.27 However, the auxiliary aid or services requirement is most concerned with ensuring the public accommodation communicates effectively with customers.28 For example, if a restaurant server is available to read the menu to blind patrons, failing to provide a menu printed in Braille is not discrimination under Title III.29

Finally, discrimination includes a public accommodation's failure to remove structural barriers when removal is possible.30 Removal of barriers may require any number of actions, including installation of a ramp, rearranging tables or chairs, or repositioning telephones.31 For example, existing and new banks would be required to adjust the height of ATMs to make them accessible to people in wheelchairs.32 However, an existing bank's need to remove barriers will be assessed in light of the expense associated with such an alteration, while new banks would have to make ATMs “readily accessible to and usable by persons with disabilities.”33

In addition to defining what constitutes discrimination by a public accommodation, Title III also lists twelve general categories34 qualifying as public accommodations for purposes of the statute, to the extent that their operations “affect commerce.”35 The categories include a variety of brick and mortar structures ranging from hotels and stores to schools and fitness centers.36 However, Title III does not expressly include websites as places of public accommodation.37