- Administrative Regulations
- Department of Justice
- Title 28
- Part 36 - Nondiscrimination on the Basis of Disability by Public Accomodations and in Commercial Facilities
Subpart A--General
Sec.
36.101 Purpose.
36.102 Application.
36.103 Relationship to other laws.
36.104 Definitions.
36.105--36.199 [Reserved]
Subpart B--General Requirements
36.201 General.
36.202 Activities.
36.203 Integrated settings.
36.204 Administrative methods.
36.205 Association.
36.206 Retaliation or coercion.
36.207 Places of public accommodations located in private residences.
36.208 Direct threat.
36.209 Illegal use of drugs.
36.210 Smoking.
36.211 Maintenance of accessible features.
36.212 Insurance.
36.213 Relationship of subpart B to subparts C and D of this part.
36.214--36.299 [Reserved]
Subpart C--Specific Requirements
36.301 Eligibility criteria.
36.302 Modifications in policies, practices, or procedures.
36.303 Auxiliary aids and services.
36.304 Removal of barriers.
36.305 Alternatives to barrier removal.
36.306 Personal devices and services.
36.307 Accessible or special goods.
36.308 Seating in assembly areas.
36.309 Examinations and courses.
36.310 Transportation provided by public accommodations.
36.311--36.399 [Reserved]
Subpart D--New Construction and Alterations
36.401 New construction.
36.402 Alterations.
36.403 Alterations: Path of travel.
36.404 Alterations: Elevator exemption.
36.405 Alterations: Historic preservation.
36.406 Standards for new construction and alterations.
36.407 Temporary suspension of certain detectable warning requirements.
36.408--36.499 [Reserved]
Subpart E--Enforcement
36.501 Private suits.
36.502 Investigations and compliance reviews.
36.503 Suit by the Attorney General.
36.504 Relief.
36.505 Attorneys fees.
36.506 Alternative means of dispute resolution.
36.507 Effect of unavailability of technical assistance.
36.508 Effective date.
36.509--36.599 [Reserved]
Subpart F--Certification of State Laws or Local Building Codes
36.601 Definitions.
36.602 General rule.
36.603 Filing a request for certification.
36.604 Preliminary determination.
36.605 Procedure following preliminary determination of equivalency.
36.606 Procedure following preliminary denial of certification.
36.607 Effect of certification.
36.608 Guidance concerning model codes.
Appendix A to Part 36--Standards for Accessible Design
Appendix B to Part 36--Preamble to Regulation on Nondiscrimination on
the Basis of Disability by Public Accommodations and in
Commercial Facilities (Published July 26, 1991)
Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; 42 U.S.C. 12186(b).
Source: Order No. 1513-91, 56 FR 35592, July 26, 1991, unless
otherwise noted.
Subpart A--General
Sec. 36.101 Purpose.
The purpose of this part is to implement title III of the Americans
with Disabilities Act of 1990 (42 U.S.C. 12181), which prohibits
discrimination on the basis of disability by public accommodations and
requires places of public accommodation and commercial facilities to be
designed, constructed, and altered in compliance with the accessibility
standards established by this part.
Sec. 36.102 Application.
(a) General. This part applies to any--
(1) Public accommodation;
(2) Commercial facility; or
(3) Private entity that offers examinations or courses related to
applications, licensing, certification, or credentialing for secondary
or postsecondary education, professional, or trade purposes.
(b) Public accommodations. (1) The requirements of this part
applicable to public accommodations are set forth in subparts B, C, and
D of this part.
(2) The requirements of subparts B and C of this part obligate a
public accommodation only with respect to the operations of a place of
public accommodation.
(3) The requirements of subpart D of this part obligate a public
accommodation only with respect to--
(i) A facility used as, or designed or constructed for use as, a
place of public accommodation; or
(ii) A facility used as, or designed and constructed for use as, a
commercial facility.
(c) Commercial facilities. The requirements of this part applicable
to commercial facilities are set forth in subpart D of this part.
(d) Examinations and courses. The requirements of this part
applicable to private entities that offer examinations or courses as
specified in paragraph (a) of this section are set forth in Sec. 36.309.
(e) Exemptions and exclusions. This part does not apply to any
private club (except to the extent that the facilities of the private
club are made available to customers or patrons of a place of public
accommodation), or to any religious entity or public entity.
Sec. 36.103 Relationship to other laws.
(a) Rule of interpretation. Except as otherwise provided in this
part, this part shall not be construed to apply a lesser standard than
the standards applied under title V of the Rehabilitation Act of 1973
(29 U.S.C. 791) or the regulations issued by Federal agencies pursuant
to that title.
(b) Section 504. This part does not affect the obligations of a
recipient of Federal financial assistance to comply with the
requirements of section 504 of the Rehabilitation Act of 1973 (29 U.S.C.
794) and regulations issued by Federal agencies implementing section
504.
(c) Other laws. This part does not invalidate or limit the remedies,
rights, and procedures of any other Federal laws, or State or local laws
(including State common law) that provide greater or equal protection
for the rights of
individuals with disabilities or individuals associated with them.
Sec. 36.104 Definitions.
For purposes of this part, the term--
Act means the Americans with Disabilities Act of 1990 (Pub. L. 101-
336, 104 Stat. 327, 42 U.S.C. 12101-12213 and 47 U.S.C. 225 and 611).
Commerce means travel, trade, traffic, commerce, transportation, or
communication--
(1) Among the several States;
(2) Between any foreign country or any territory or possession and
any State; or
(3) Between points in the same State but through another State or
foreign country.
Commercial facilities means facilities--
(1) Whose operations will affect commerce;
(2) That are intended for nonresidential use by a private entity;
and
(3) That are not--
(i) Facilities that are covered or expressly exempted from coverage
under the Fair Housing Act of 1968, as amended (42 U.S.C. 3601-3631);
(ii) Aircraft; or
(iii) Railroad locomotives, railroad freight cars, railroad
cabooses, commuter or intercity passenger rail cars (including coaches,
dining cars, sleeping cars, lounge cars, and food service cars), any
other railroad cars described in section 242 of the Act or covered under
title II of the Act, or railroad rights-of-way. For purposes of this
definition, ``rail'' and ``railroad'' have the meaning given the term
``railroad'' in section 202(e) of the Federal Railroad Safety Act of
1970 (45 U.S.C. 431(e)).
Current illegal use of drugs means illegal use of drugs that
occurred recently enough to justify a reasonable belief that a person's
drug use is current or that continuing use is a real and ongoing
problem.
Disability means, with respect to an individual, a physical or
mental impairment that substantially limits one or more of the major
life activities of such individual; a record of such an impairment; or
being regarded as having such an impairment.
(1) The phrase physical or mental impairment means--
(i) Any physiological disorder or condition, cosmetic disfigurement,
or anatomical loss affecting one or more of the following body systems:
neurological; musculoskeletal; special sense organs; respiratory,
including speech organs; cardiovascular; reproductive; digestive;
genitourinary; hemic and lymphatic; skin; and endocrine;
(ii) Any mental or psychological disorder such as mental
retardation, organic brain syndrome, emotional or mental illness, and
specific learning disabilities;
(iii) The phrase physical or mental impairment includes, but is not
limited to, such contagious and noncontagious diseases and conditions as
orthopedic, visual, speech, and hearing impairments, cerebral palsy,
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease,
diabetes, mental retardation, emotional illness, specific learning
disabilities, HIV disease (whether symptomatic or asymptomatic),
tuberculosis, drug addiction, and alcoholism;
(iv) The phrase physical or mental impairment does not include
homosexuality or bisexuality.
(2) The phrase major life activities means functions such as caring
for one's self, performing manual tasks, walking, seeing, hearing,
speaking, breathing, learning, and working.
(3) The phrase has a record of such an impairment means has a
history of, or has been misclassified as having, a mental or physical
impairment that substantially limits one or more major life activities.
(4) The phrase is regarded as having an impairment means--
(i) Has a physical or mental impairment that does not substantially
limit major life activities but that is treated by a private entity as
constituting such a limitation;
(ii) Has a physical or mental impairment that substantially limits
major life activities only as a result of the attitudes of others toward
such impairment; or
(iii) Has none of the impairments defined in paragraph (1) of this
definition but is treated by a private entity as having such an
impairment.
(5) The term disability does not include--
(i) Transvestism, transsexualism, pedophilia, exhibitionism,
voyeurism, gender identity disorders not resulting from physical
impairments, or other sexual behavior disorders;
(ii) Compulsive gambling, kleptomania, or pyromania; or
(iii) Psychoactive substance use disorders resulting from current
illegal use of drugs.
Drug means a controlled substance, as defined in schedules I through
V of section 202 of the Controlled Substances Act (21 U.S.C. 812).
Facility means all or any portion of buildings, structures, sites,
complexes, equipment, rolling stock or other conveyances, roads, walks,
passageways, parking lots, or other real or personal property, including
the site where the building, property, structure, or equipment is
located.
Illegal use of drugs means the use of one or more drugs, the
possession or distribution of which is unlawful under the Controlled
Substances Act (21 U.S.C. 812). The term ``illegal use of drugs'' does
not include the use of a drug taken under supervision by a licensed
health care professional, or other uses authorized by the Controlled
Substances Act or other provisions of Federal law.
Individual with a disability means a person who has a disability.
The term ``individual with a disability'' does not include an individual
who is currently engaging in the illegal use of drugs, when the private
entity acts on the basis of such use.
Place of public accommodation means a facility, operated by a
private entity, whose operations affect commerce and fall within at
least one of the following categories--
(1) An inn, hotel, motel, or other place of lodging, except for an
establishment located within a building that contains not more than five
rooms for rent or hire and that is actually occupied by the proprietor
of the establishment as the residence of the proprietor;
(2) A restaurant, bar, or other establishment serving food or drink;
(3) A motion picture house, theater, concert hall, stadium, or other
place of exhibition or entertainment;
(4) An auditorium, convention center, lecture hall, or other place
of public gathering;
(5) A bakery, grocery store, clothing store, hardware store,
shopping center, or other sales or rental establishment;
(6) A laundromat, dry-cleaner, bank, barber shop, beauty shop,
travel service, shoe repair service, funeral parlor, gas station, office
of an accountant or lawyer, pharmacy, insurance office, professional
office of a health care provider, hospital, or other service
establishment;
(7) A terminal, depot, or other station used for specified public
transportation;
(8) A museum, library, gallery, or other place of public display or
collection;
(9) A park, zoo, amusement park, or other place of recreation;
(10) A nursery, elementary, secondary, undergraduate, or
postgraduate private school, or other place of education;
(11) A day care center, senior citizen center, homeless shelter,
food bank, adoption agency, or other social service center
establishment; and
(12) A gymnasium, health spa, bowling alley, golf course, or other
place of exercise or recreation.
Private club means a private club or establishment exempted from
coverage under title II of the Civil Rights Act of 1964 (42 U.S.C.
2000a(e)).
Private entity means a person or entity other than a public entity.
Public accommodation means a private entity that owns, leases (or
leases to), or operates a place of public accommodation.
Public entity means--
(1) Any State or local government;
(2) Any department, agency, special purpose district, or other
instrumentality of a State or States or local government; and
(3) The National Railroad Passenger Corporation, and any commuter
authority (as defined in section 103(8) of the Rail Passenger Service
Act). (45 U.S.C. 541)
Qualified interpreter means an interpreter who is able to interpret
effectively, accurately and impartially both receptively and
expressively, using any necessary specialized vocabulary.
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--
(1) The nature and cost of the action needed under this part;
(2) The overall financial resources of the site or sites involved in
the action; the number of persons employed at the site; the effect on
expenses and resources; legitimate safety requirements that are
necessary for safe operation, including crime prevention measures; or
the impact otherwise of the action upon the operation of the site;
(3) The geographic separateness, and the administrative or fiscal
relationship of the site or sites in question to any parent corporation
or entity;
(4) If applicable, the overall financial resources of any parent
corporation or entity; the overall size of the parent corporation or
entity with respect to the number of its employees; the number, type,
and location of its facilities; and
(5) If applicable, the type of operation or operations of any parent
corporation or entity, including the composition, structure, and
functions of the workforce of the parent corporation or entity.
Religious entity means a religious organization, including a place
of worship.
Service animal means any guide dog, signal dog, or other animal
individually trained to do work or perform tasks for the benefit of an
individual with a disability, including, but not limited to, guiding
individuals with impaired vision, alerting individuals with impaired
hearing to intruders or sounds, providing minimal protection or rescue
work, pulling a wheelchair, or fetching dropped items.
Specified public transportation means transportation by bus, rail,
or any other conveyance (other than by aircraft) that provides the
general public with general or special service (including charter
service) on a regular and continuing basis.
State means each of the several States, the District of Columbia,
the Commonwealth of Puerto Rico, Guam, American Samoa, the Virgin
Islands, the Trust Territory of the Pacific Islands, and the
Commonwealth of the Northern Mariana Islands.
Undue burden means significant difficulty or expense. In determining
whether an action would result in an undue burden, factors to be
considered include--
(1) The nature and cost of the action needed under this part;
(2) The overall financial resources of the site or sites involved in
the action; the number of persons employed at the site; the effect on
expenses and resources; legitimate safety requirements that are
necessary for safe operation, including crime prevention measures; or
the impact otherwise of the action upon the operation of the site;
(3) The geographic separateness, and the administrative or fiscal
relationship of the site or sites in question to any parent corporation
or entity;
(4) If applicable, the overall financial resources of any parent
corporation or entity; the overall size of the parent corporation or
entity with respect to the number of its employees; the number, type,
and location of its facilities; and
(5) If applicable, the type of operation or operations of any parent
corporation or entity, including the composition, structure, and
functions of the workforce of the parent corporation or entity.
Secs. 36.105--36.199 [Reserved]
Subpart B--General Requirements
Sec. 36.201 General.
(a) Prohibition of discrimination. 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 private
entity who owns, leases (or leases to), or operates a place of public
accommodation.
(b) Landlord and tenant responsibilities. Both the landlord who owns
the building that houses a place of public accommodation and the tenant
who
owns or operates the place of public accommodation are public
accommodations subject to the requirements of this part. As between the
parties, allocation of responsibility for complying with the obligations
of this part may be determined by lease or other contract.
Sec. 36.202 Activities.
(a) Denial of participation. A public accommodation shall not
subject an individual or class of individuals on the basis of a
disability or disabilities of such individual or class, directly, or
through contractual, licensing, or other arrangements, to a denial of
the opportunity of the individual or class to participate in or benefit
from the goods, services, facilities, privileges, advantages, or
accommodations of a place of public accommodation.
(b) Participation in unequal benefit. A public accommodation shall
not afford an individual or class of individuals, on the basis of a
disability or disabilities of such individual or class, directly, or
through contractual, licensing, or other arrangements, with the
opportunity to participate in or benefit from a good, service, facility,
privilege, advantage, or accommodation that is not equal to that
afforded to other individuals.
(c) Separate benefit. A public accommodation shall not provide an
individual or class of individuals, on the basis of a disability or
disabilities of such individual or class, directly, or through
contractual, licensing, or other arrangements with a good, service,
facility, privilege, advantage, or accommodation that is different or
separate from that provided to other individuals, unless such action is
necessary to provide the individual or class of individuals with a good,
service, facility, privilege, advantage, or accommodation, or other
opportunity that is as effective as that provided to others.
(d) Individual or class of individuals. For purposes of paragraphs
(a) through (c) of this section, the term ``individual or class of
individuals'' refers to the clients or customers of the public
accommodation that enters into the contractual, licensing, or other
arrangement.
Sec. 36.203 Integrated settings.
(a) General. A public accommodation shall afford goods, services,
facilities, privileges, advantages, and accommodations to an individual
with a disability in the most integrated setting appropriate to the
needs of the individual.
(b) Opportunity to participate. Notwithstanding the existence of
separate or different programs or activities provided in accordance with
this subpart, a public accommodation shall not deny an individual with a
disability an opportunity to participate in such programs or activities
that are not separate or different.
(c) Accommodations and services. (1) Nothing in this part shall be
construed to require an individual with a disability to accept an
accommodation, aid, service, opportunity, or benefit available under
this part that such individual chooses not to accept.
(2) Nothing in the Act or this part authorizes the representative or
guardian of an individual with a disability to decline food, water,
medical treatment, or medical services for that individual.
Sec. 36.204 Administrative methods.
A public accommodation shall not, directly or through contractual or
other arrangements, utilize standards or criteria or methods of
administration that have the effect of discriminating on the basis of
disability, or that perpetuate the discrimination of others who are
subject to common administrative control.
Sec. 36.205 Association.
A public accommodation shall not exclude or otherwise deny equal
goods, services, facilities, privileges, advantages, accommodations, or
other opportunities to an individual or entity because of the known
disability of an individual with whom the individual or entity is known
to have a relationship or association.
Sec. 36.206 Retaliation or coercion.
(a) No private or public entity shall discriminate against any
individual because that individual has opposed any act or practice made
unlawful by this part, or because that individual made a
charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under the Act or this part.
(b) No private or public entity shall coerce, intimidate, threaten,
or interfere with any individual in the exercise or enjoyment of, or on
account of his or her having exercised or enjoyed, or on account of his
or her having aided or encouraged any other individual in the exercise
or enjoyment of, any right granted or protected by the Act or this part.
(c) Illustrations of conduct prohibited by this section include, but
are not limited to:
(1) Coercing an individual to deny or limit the benefits, services,
or advantages to which he or she is entitled under the Act or this part;
(2) Threatening, intimidating, or interfering with an individual
with a disability who is seeking to obtain or use the goods, services,
facilities, privileges, advantages, or accommodations of a public
accommodation;
(3) Intimidating or threatening any person because that person is
assisting or encouraging an individual or group entitled to claim the
rights granted or protected by the Act or this part to exercise those
rights; or
(4) Retaliating against any person because that person has
participated in any investigation or action to enforce the Act or this
part.
Sec. 36.207 Places of public accommodation located in private
residences.
(a) When a place of public accommodation is located in a private
residence, the portion of the residence used exclusively as a residence
is not covered by this part, but that portion used exclusively in the
operation of the place of public accommodation or that portion used both
for the place of public accommodation and for residential purposes is
covered by this part.
(b) The portion of the residence covered under paragraph (a) of this
section extends to those elements used to enter the place of public
accommodation, including the homeowner's front sidewalk, if any, the
door or entryway, and hallways; and those portions of the residence,
interior or exterior, available to or used by customers or clients,
including restrooms.
Sec. 36.208 Direct threat.
(a) This part does not require a public accommodation to permit an
individual to participate in or benefit from the goods, services,
facilities, privileges, advantages and accommodations of that public
accommodation when that individual poses a direct threat to the health
or safety of others.
(b) Direct threat means a significant risk to the health or safety
of others that cannot be eliminated by a modification of policies,
practices, or procedures, or by the provision of auxiliary aids or
services.
(c) In determining whether an individual poses a direct threat to
the health or safety of others, a public accommodation must make an
individualized assessment, based on reasonable judgment that relies on
current medical knowledge or on the best available objective evidence,
to ascertain: the nature, duration, and severity of the risk; the
probability that the potential injury will actually occur; and whether
reasonable modifications of policies, practices, or procedures will
mitigate the risk.
Sec. 36.209 Illegal use of drugs.
(a) General. (1) Except as provided in paragraph (b) of this
section, this part does not prohibit discrimination against an
individual based on that individual's current illegal use of drugs.
(2) A public accommodation shall not discriminate on the basis of
illegal use of drugs against an individual who is not engaging in
current illegal use of drugs and who--
(i) Has successfully completed a supervised drug rehabilitation
program or has otherwise been rehabilitated successfully;
(ii) Is participating in a supervised rehabilitation program; or
(iii) Is erroneously regarded as engaging in such use.
(b) Health and drug rehabilitation services. (1) A public
accommodation shall not deny health services, or services provided in
connection with drug rehabilitation, to an individual on the basis of
that individual's current illegal use
of drugs, if the individual is otherwise entitled to such services.
(2) A drug rehabilitation or treatment program may deny
participation to individuals who engage in illegal use of drugs while
they are in the program.
(c) Drug testing. (1) This part does not prohibit a public
accommodation from adopting or administering reasonable policies or
procedures, including but not limited to drug testing, designed to
ensure that an individual who formerly engaged in the illegal use of
drugs is not now engaging in current illegal use of drugs.
(2) Nothing in this paragraph (c) shall be construed to encourage,
prohibit, restrict, or authorize the conducting of testing for the
illegal use of drugs.
Sec. 36.210 Smoking.
This part does not preclude the prohibition of, or the imposition of
restrictions on, smoking in places of public accommodation.
Sec. 36.211 Maintenance of accessible features.
(a) A public accommodation shall maintain in operable working
condition those features of facilities and equipment that are required
to be readily accessible to and usable by persons with disabilities by
the Act or this part.
(b) This section does not prohibit isolated or temporary
interruptions in service or access due to maintenance or repairs.
Sec. 36.212 Insurance.
(a) This part shall not be construed to prohibit or restrict--
(1) An insurer, hospital or medical service company, health
maintenance organization, or any agent, or entity that administers
benefit plans, or similar organizations from underwriting risks,
classifying risks, or administering such risks that are based on or not
inconsistent with State law; or
(2) A person or organization covered by this part from establishing,
sponsoring, observing or administering the terms of a bona fide benefit
plan that are based on underwriting risks, classifying risks, or
administering such risks that are based on or not inconsistent with
State law; or
(3) A person or organization covered by this part from establishing,
sponsoring, observing or administering the terms of a bona fide benefit
plan that is not subject to State laws that regulate insurance.
(b) Paragraphs (a) (1), (2), and (3) of this section shall not be
used as a subterfuge to evade the purposes of the Act or this part.
(c) A public accommodation shall not refuse to serve an individual
with a disability because its insurance company conditions coverage or
rates on the absence of individuals with disabilities.
Sec. 36.213 Relationship of subpart B to subparts C and D of this part.
Subpart B of this part sets forth the general principles of
nondiscrimination applicable to all entities subject to this part.
Subparts C and D of this part provide guidance on the application of the
statute to specific situations. The specific provisions, including the
limitations on those provisions, control over the general provisions in
circumstances where both specific and general provisions apply.
Secs. 36.214--36.299 [Reserved]
Subpart C--Specific Requirements
Sec. 36.301 Eligibility criteria.
(a) General. A public accommodation shall not impose or apply
eligibility criteria that screen out or tend to screen out an individual
with a disability or any class of individuals with disabilities from
fully and equally enjoying any goods, services, facilities, privileges,
advantages, or accommodations, unless such criteria can be shown to be
necessary for the provision of the goods, services, facilities,
privileges, advantages, or accommodations being offered.
(b) Safety. A public accommodation may impose legitimate safety
requirements that are necessary for safe operation. Safety requirements
must be based on actual risks and not on mere speculation, stereotypes,
or generalizations about individuals with disabilities.
(c) Charges. A public accommodation may not impose a surcharge on a
particular individual with a disability or
any group of individuals with disabilities to cover the costs of
measures, such as the provision of auxiliary aids, barrier removal,
alternatives to barrier removal, and reasonable modifications in
policies, practices, or procedures, that are required to provide that
individual or group with the nondiscriminatory treatment required by the
Act or this part.
Sec. 36.302 Modifications in policies, practices, or procedures.
(a) General. A public accommodation shall make reasonable
modifications in policies, practices, or procedures, when the
modifications are necessary to afford goods, services, facilities,
privileges, advantages, or accommodations to individuals with
disabilities, unless the public accommodation can demonstrate that
making the modifications would fundamentally alter the nature of the
goods, services, facilities, privileges, advantages, or accommodations.
(b) Specialties--(1) General. A public accommodation may refer an
individual with a disability to another public accommodation, if that
individual is seeking, or requires, treatment or services outside of the
referring public accommodation's area of specialization, and if, in the
normal course of its operations, the referring public accommodation
would make a similar referral for an individual without a disability who
seeks or requires the same treatment or services.
(2) Illustration--medical specialties. A health care provider may
refer an individual with a disability to another provider, if that
individual is seeking, or requires, treatment or services outside of the
referring provider's area of specialization, and if the referring
provider would make a similar referral for an individual without a
disability who seeks or requires the same treatment or services. A
physician who specializes in treating only a particular condition cannot
refuse to treat an individual with a disability for that condition, but
is not required to treat the individual for a different condition.
(c) Service animals--(1) General. Generally, a public accommodation
shall modify policies, practices, or procedures to permit the use of a
service animal by an individual with a disability.
(2) Care or supervision of service animals. Nothing in this part
requires a public accommodation to supervise or care for a service
animal.
(d) Check-out aisles. A store with check-out aisles shall ensure
that an adequate number of accessible check-out aisles are kept open
during store hours, or shall otherwise modify its policies and
practices, in order to ensure that an equivalent level of convenient
service is provided to individuals with disabilities as is provided to
others. If only one check-out aisle is accessible, and it is generally
used for express service, one way of providing equivalent service is to
allow persons with mobility impairments to make all their purchases at
that aisle.
Sec. 36.303 Auxiliary aids and services.
(a) General. A public accommodation shall take those steps that may
be necessary to ensure that no individual with a disability is excluded,
denied services, segregated or otherwise treated differently than other
individuals because of the absence of auxiliary aids and services,
unless the public accommodation can demonstrate that taking those steps
would fundamentally alter the nature of the goods, services, facilities,
privileges, advantages, or accommodations being offered or would result
in an undue burden, i.e., significant difficulty or expense.
(b) Examples. The term ``auxiliary aids and services'' includes--
(1) Qualified interpreters, notetakers, computer-aided transcription
services, written materials, telephone handset amplifiers, assistive
listening devices, assistive listening systems, telephones compatible
with hearing aids, closed caption decoders, open and closed captioning,
telecommunications devices for deaf persons (TDD's), videotext displays,
or other effective methods of making aurally delivered materials
available to individuals with hearing impairments;
(2) Qualified readers, taped texts, audio recordings, Brailled
materials, large print materials, or other effective methods of making
visually delivered materials available to individuals with visual
impairments;
(3) Acquisition or modification of equipment or devices; and
(4) Other similar services and actions.
(c) Effective communication. A public accommodation shall furnish
appropriate auxiliary aids and services where necessary to ensure
effective communication with individuals with disabilities.
(d) Telecommunication devices for the deaf (TDD's). (1) A public
accommodation that offers a customer, client, patient, or participant
the opportunity to make outgoing telephone calls on more than an
incidental convenience basis shall make available, upon request, a TDD
for the use of an individual who has impaired hearing or a communication
disorder.
(2) This part does not require a public accommodation to use a TDD
for receiving or making telephone calls incident to its operations.
(e) Closed caption decoders. Places of lodging that provide
televisions in five or more guest rooms and hospitals that provide
televisions for patient use shall provide, upon request, a means for
decoding captions for use by an individual with impaired hearing.
(f) Alternatives. If provision of a particular auxiliary aid or
service by a public accommodation would result in a fundamental
alteration in the nature of the goods, services, facilities, privileges,
advantages, or accommodations being offered or in an undue burden, i.e.,
significant difficulty or expense, the public accommodation shall
provide an alternative auxiliary aid or service, if one exists, that
would not result in an alteration or such burden but would nevertheless
ensure that, to the maximum extent possible, individuals with
disabilities receive the goods, services, facilities, privileges,
advantages, or accommodations offered by the public accommodation.
Sec. 36.304 Removal of barriers.
(a) General. A public accommodation shall remove architectural
barriers in existing facilities, including communication barriers that
are structural in nature, where such removal is readily achievable,
i.e., easily accomplishable and able to be carried out without much
difficulty or expense.
(b) Examples. Examples of steps to remove barriers include, but are
not limited to, the following actions--
(1) Installing ramps;
(2) Making curb cuts in sidewalks and entrances;
(3) Repositioning shelves;
(4) Rearranging tables, chairs, vending machines, display racks, and
other furniture;
(5) Repositioning telephones;
(6) Adding raised markings on elevator control buttons;
(7) Installing flashing alarm lights;
(8) Widening doors;
(9) Installing offset hinges to widen doorways;
(10) Eliminating a turnstile or providing an alternative accessible
path;
(11) Installing accessible door hardware;
(12) Installing grab bars in toilet stalls;
(13) Rearranging toilet partitions to increase maneuvering space;
(14) Insulating lavatory pipes under sinks to prevent burns;
(15) Installing a raised toilet seat;
(16) Installing a full-length bathroom mirror;
(17) Repositioning the paper towel dispenser in a bathroom;
(18) Creating designated accessible parking spaces;
(19) Installing an accessible paper cup dispenser at an existing
inaccessible water fountain;
(20) Removing high pile, low density carpeting; or
(21) Installing vehicle hand controls.
(c) Priorities. A public accommodation is urged to take measures to
comply with the barrier removal requirements of this section in
accordance with the following order of priorities.
(1) First, a public accommodation should take measures to provide
access to a place of public accommodation from public sidewalks,
parking, or public transportation. These measures include, for example,
installing an entrance ramp, widening entrances, and providing
accessible parking spaces.
(2) Second, a public accommodation should take measures to provide
access to those areas of a place of public accommodation where goods and
services are made available to the public. These
measures include, for example, adjusting the layout of display racks,
rearranging tables, providing Brailled and raised character signage,
widening doors, providing visual alarms, and installing ramps.
(3) Third, a public accommodation should take measures to provide
access to restroom facilities. These measures include, for example,
removal of obstructing furniture or vending machines, widening of doors,
installation of ramps, providing accessible signage, widening of toilet
stalls, and installation of grab bars.
(4) Fourth, a public accommodation should take any other measures
necessary to provide access to the goods, services, facilities,
privileges, advantages, or accommodations of a place of public
accommodation.
(d) Relationship to alterations requirements of subpart D of this
part. (1) Except as provided in paragraph (d)(2) of this section,
measures taken to comply with the barrier removal requirements of this
section shall comply with the applicable requirements for alterations in
Sec. 36.402 and Secs. 36.404-36.406 of this part for the element being
altered. The path of travel requirements of Sec. 36.403 shall not apply
to measures taken solely to comply with the barrier removal requirements
of this section.
(2) If, as a result of compliance with the alterations requirements
specified in paragraph (d)(1) of this section, the measures required to
remove a barrier would not be readily achievable, a public accommodation
may take other readily achievable measures to remove the barrier that do
not fully comply with the specified requirements. Such measures include,
for example, providing a ramp with a steeper slope or widening a doorway
to a narrower width than that mandated by the alterations requirements.
No measure shall be taken, however, that poses a significant risk to the
health or safety of individuals with disabilities or others.
(e) Portable ramps. Portable ramps should be used to comply with
this section only when installation of a permanent ramp is not readily
achievable. In order to avoid any significant risk to the health or
safety of individuals with disabilities or others in using portable
ramps, due consideration shall be given to safety features such as
nonslip surfaces, railings, anchoring, and strength of materials.
(f) Selling or serving space. The rearrangement of temporary or
movable structures, such as furniture, equipment, and display racks is
not readily achievable to the extent that it results in a significant
loss of selling or serving space.
(g) Limitation on barrier removal obligations. (1) The requirements
for barrier removal under Sec. 36.304 shall not be interpreted to exceed
the standards for alterations in subpart D of this part.
(2) To the extent that relevant standards for alterations are not
provided in subpart D of this part, then the requirements of Sec. 36.304
shall not be interpreted to exceed the standards for new construction in
subpart D of this part.
(3) This section does not apply to rolling stock and other
conveyances to the extent that Sec. 36.310 applies to rolling stock and
other conveyances.
Sec. 36.305 Alternatives to barrier removal.
(a) General. Where a public accommodation can demonstrate that
barrier removal is not readily achievable, the public accommodation
shall not fail to make its goods, services, facilities, privileges,
advantages, or accommodations available through alternative methods, if
those methods are readily achievable.
(b) Examples. Examples of alternatives to barrier removal include,
but are not limited to, the following actions--
(1) Providing curb service or home delivery;
(2) Retrieving merchandise from inaccessible shelves or racks;
(3) Relocating activities to accessible locations;
(c) Multiscreen cinemas. If it is not readily achievable to remove
barriers to provide access by persons with mobility impairments to all
of the theaters of a multiscreen cinema, the cinema shall establish a
film rotation schedule that provides reasonable access for individuals
who use wheelchairs to all films. Reasonable notice shall be provided to
the public as to the location and time of accessible showings.
Sec. 36.306 Personal devices and services.
This part does not require a public accommodation to provide its
customers, clients, or participants with personal devices, such as
wheelchairs; individually prescribed devices, such as prescription
eyeglasses or hearing aids; or services of a personal nature including
assistance in eating, toileting, or dressing.
Sec. 36.307 Accessible or special goods.
(a) This part does not require a public accommodation to alter its
inventory to include accessible or special goods that are designed for,
or facilitate use by, individuals with disabilities.
(b) A public accommodation shall order accessible or special goods
at the request of an individual with disabilities, if, in the normal
course of its operation, it makes special orders on request for
unstocked goods, and if the accessible or special goods can be obtained
from a supplier with whom the public accommodation customarily does
business.
(c) Examples of accessible or special goods include items such as
Brailled versions of books, books on audio cassettes, closed-captioned
video tapes, special sizes or lines of clothing, and special foods to
meet particular dietary needs.
Sec. 36.308 Seating in assembly areas.
(a) Existing facilities. (1) To the extent that it is readily
achievable, a public accommodation in assembly areas shall--
(i) Provide a reasonable number of wheelchair seating spaces and
seats with removable aisle-side arm rests; and
(ii) Locate the wheelchair seating spaces so that they--
(A) Are dispersed throughout the seating area;
(B) Provide lines of sight and choice of admission prices comparable
to those for members of the general public;
(C) Adjoin an accessible route that also serves as a means of egress
in case of emergency; and
(D) Permit individuals who use wheelchairs to sit with family
members or other companions.
(2) If removal of seats is not readily achievable, a public
accommodation shall provide, to the extent that it is readily achievable
to do so, a portable chair or other means to permit a family member or
other companion to sit with an individual who uses a wheelchair.
(3) The requirements of paragraph (a) of this section shall not be
interpreted to exceed the standards for alterations in subpart D of this
part.
(b) New construction and alterations. The provision and location of
wheelchair seating spaces in newly constructed or altered assembly areas
shall be governed by the standards for new construction and alterations
in subpart D of this part.
Sec. 36.309 Examinations and courses.
(a) General. Any private entity that offers examinations or courses
related to applications, licensing, certification, or credentialing for
secondary or postsecondary education, professional, or trade purposes
shall offer such examinations or courses in a place and manner
accessible to persons with disabilities or offer alternative accessible
arrangements for such individuals.
(b) Examinations. (1) Any private entity offering an examination
covered by this section must assure that--
(i) The examination is selected and administered so as to best
ensure that, when the examination is administered to an individual with
a disability that impairs sensory, manual, or speaking skills, the
examination results accurately reflect the individual's aptitude or
achievement level or whatever other factor the examination purports to
measure, rather than reflecting the individual's impaired sensory,
manual, or speaking skills (except where those skills are the factors
that the examination purports to measure);
(ii) An examination that is designed for individuals with impaired
sensory, manual, or speaking skills is offered at equally convenient
locations, as often, and in as timely a manner as are other
examinations; and
(iii) The examination is administered in facilities that are
accessible to individuals with disabilities or alternative accessible
arrangements are made.
(2) Required modifications to an examination may include changes in
the length of time permitted for completion of the examination and
adaptation of the manner in which the examination is given.
(3) A private entity offering an examination covered by this section
shall provide appropriate auxiliary aids for persons with impaired
sensory, manual, or speaking skills, unless that private entity can
demonstrate that offering a particular auxiliary aid would fundamentally
alter the measurement of the skills or knowledge the examination is
intended to test or would result in an undue burden. Auxiliary aids and
services required by this section may include taped examinations,
interpreters or other effective methods of making orally delivered
materials available to individuals with hearing impairments, Brailled or
large print examinations and answer sheets or qualified readers for
individuals with visual impairments or learning disabilities,
transcribers for individuals with manual impairments, and other similar
services and actions.
(4) Alternative accessible arrangements may include, for example,
provision of an examination at an individual's home with a proctor if
accessible facilities or equipment are unavailable. Alternative
arrangements must provide comparable conditions to those provided for
nondisabled individuals.
(c) Courses. (1) Any private entity that offers a course covered by
this section must make such modifications to that course as are
necessary to ensure that the place and manner in which the course is
given are accessible to individuals with disabilities.
(2) Required modifications may include changes in the length of time
permitted for the completion of the course, substitution of specific
requirements, or adaptation of the manner in which the course is
conducted or course materials are distributed.
(3) A private entity that offers a course covered by this section
shall provide appropriate auxiliary aids and services for persons with
impaired sensory, manual, or speaking skills, unless the private entity
can demonstrate that offering a particular auxiliary aid or service
would fundamentally alter the course or would result in an undue burden.
Auxiliary aids and services required by this section may include taped
texts, interpreters or other effective methods of making orally
delivered materials available to individuals with hearing impairments,
Brailled or large print texts or qualified readers for individuals with
visual impairments and learning disabilities, classroom equipment
adapted for use by individuals with manual impairments, and other
similar services and actions.
(4) Courses must be administered in facilities that are accessible
to individuals with disabilities or alternative accessible arrangements
must be made.
(5) Alternative accessible arrangements may include, for example,
provision of the course through videotape, cassettes, or prepared notes.
Alternative arrangements must provide comparable conditions to those
provided for nondisabled individuals.
Sec. 36.310 Transportation provided by public accommodations.
(a) General. (1) A public accommodation that provides transportation
services, but that is not primarily engaged in the business of
transporting people, is subject to the general and specific provisions
in subparts B, C, and D of this part for its transportation operations,
except as provided in this section.
(2) Examples. Transportation services subject to this section
include, but are not limited to, shuttle services operated between
transportation terminals and places of public accommodation, customer
shuttle bus services operated by private companies and shopping centers,
student transportation systems, and transportation provided within
recreational facilities such as stadiums, zoos, amusement parks, and ski
resorts.
(b) Barrier removal. A public accommodation subject to this section
shall remove transportation barriers in existing vehicles and rail
passenger cars used for transporting individuals (not including barriers
that can only be removed through the retrofitting of vehicles or rail
passenger cars by the installation of a hydraulic or other lift) where
such removal is readily achievable.
(c) Requirements for vehicles and systems. A public accommodation
subject to this section shall comply with the requirements pertaining to
vehicles and transportation systems in the regulations issued by the
Secretary of Transportation pursuant to section 306 of the Act.
Secs. 36.311--36.399 [Reserved]
Subpart D--New Construction and Alterations
Sec. 36.401 New construction.
(a) General. (1) Except as provided in paragraphs (b) and (c) of
this section, discrimination for purposes of this part includes a
failure to design and construct facilities for first occupancy after
January 26, 1993, that are readily accessible to and usable by
individuals with disabilities.
(2) For purposes of this section, a facility is designed and
constructed for first occupancy after January 26, 1993, only--
(i) If the last application for a building permit or permit
extension for the facility is certified to be complete, by a State,
County, or local government after January 26, 1992 (or, in those
jurisdictions where the government does not certify completion of
applications, if the last application for a building permit or permit
extension for the facility is received by the State, County, or local
government after January 26, 1992); and
(ii) If the first certificate of occupancy for the facility is
issued after January 26, 1993.
(b) Commercial facilities located in private residences. (1) When a
commercial facility is located in a private residence, the portion of
the residence used exclusively as a residence is not covered by this
subpart, but that portion used exclusively in the operation of the
commercial facility or that portion used both for the commercial
facility and for residential purposes is covered by the new construction
and alterations requirements of this subpart.
(2) The portion of the residence covered under paragraph (b)(1) of
this section extends to those elements used to enter the commercial
facility, including the homeowner's front sidewalk, if any, the door or
entryway, and hallways; and those portions of the residence, interior or
exterior, available to or used by employees or visitors of the
commercial facility, including restrooms.
(c) Exception for structural impracticability. (1) Full compliance
with the requirements of this section is not required where an entity
can demonstrate that it is structurally impracticable to meet the
requirements. Full compliance will be considered structurally
impracticable only in those rare circumstances when the unique
characteristics of terrain prevent the incorporation of accessibility
features.
(2) If full compliance with this section would be structurally
impracticable, compliance with this section is required to the extent
that it is not structurally impracticable. In that case, any portion of
the facility that can be made accessible shall be made accessible to the
extent that it is not structurally impracticable.
(3) If providing accessibility in conformance with this section to
individuals with certain disabilities (e.g., those who use wheelchairs)
would be structurally impracticable, accessibility shall nonetheless be
ensured to persons with other types of disabilities (e.g., those who use
crutches or who have sight, hearing, or mental impairments) in
accordance with this section.
(d) Elevator exemption. (1) For purposes of this paragraph (d)--
(i) Professional office of a health care provider means a location
where a person or entity regulated by a State to provide professional
services related to the physical or mental health of an individual makes
such services available to the public. The facility housing the
``professional office of a health care provider'' only includes floor
levels housing at least one health care provider, or any floor level
designed or intended for use by at least one health care provider.
(ii) Shopping center or shopping mall means--
(A) A building housing five or more sales or rental establishments;
or
(B) A series of buildings on a common site, either under common
ownership or common control or developed either as one project or as a
series of related
projects, housing five or more sales or rental establishments. For
purposes of this section, places of public accommodation of the types
listed in paragraph (5) of the definition of ``place of public
accommodation'' in section Sec. 36.104 are considered sales or rental
establishments. The facility housing a ``shopping center or shopping
mall'' only includes floor levels housing at least one sales or rental
establishment, or any floor level designed or intended for use by at
least one sales or rental establishment.
(2) This section does not require the installation of an elevator in
a facility that is less than three stories or has less than 3000 square
feet per story, except with respect to any facility that houses one or
more of the following:
(i) A shopping center or shopping mall, or a professional office of
a health care provider.
(ii) A terminal, depot, or other station used for specified public
transportation, or an airport passenger terminal. In such a facility,
any area housing passenger services, including boarding and debarking,
loading and unloading, baggage claim, dining facilities, and other
common areas open to the public, must be on an accessible route from an
accessible entrance.
(3) The elevator exemption set forth in this paragraph (d) does not
obviate or limit, in any way the obligation to comply with the other
accessibility requirements established in paragraph (a) of this section.
For example, in a facility that houses a shopping center or shopping
mall, or a professional office of a health care provider, the floors
that are above or below an accessible ground floor and that do not house
sales or rental establishments or a professional office of a health care
provider, must meet the requirements of this section but for the
elevator.
Sec. 36.402 Alterations.
(a) General. (1) Any alteration to a place of public accommodation
or a commercial facility, after January 26, 1992, shall be made so as to
ensure 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.
(2) An alteration is deemed to be undertaken after January 26, 1992,
if the physical alteration of the property begins after that date.
(b) Alteration. For the purposes of this part, an alteration is a
change to a place of public accommodation or a commercial facility that
affects or could affect the usability of the building or facility or any
part thereof.
(1) Alterations include, but are not limited to, remodeling,
renovation, rehabilitation, reconstruction, historic restoration,
changes or rearrangement in structural parts or elements, and changes or
rearrangement in the plan configuration of walls and full-height
partitions. Normal maintenance, reroofing, painting or wallpapering,
asbestos removal, or changes to mechanical and electrical systems are
not alterations unless they affect the usability of the building or
facility.
(2) If existing elements, spaces, or common areas are altered, then
each such altered element, space, or area shall comply with the
applicable provisions of appendix A to this part.
(c) To the maximum extent feasible. The phrase ``to the maximum
extent feasible,'' as used in this section, applies to the occasional
case where the nature of an existing facility makes it virtually
impossible to comply fully with applicable accessibility standards
through a planned alteration. In these circumstances, the alteration
shall provide the maximum physical accessibility feasible. Any altered
features of the facility that can be made accessible shall be made
accessible. If providing accessibility in conformance with this section
to individuals with certain disabilities (e.g., those who use
wheelchairs) would not be feasible, the facility shall be made
accessible to persons with other types of disabilities (e.g., those who
use crutches, those who have impaired vision or hearing, or those who
have other impairments).
Sec. 36.403 Alterations: Path of travel.
(a) General. An alteration that affects or could affect the
usability of or access to an area of a facility that contains a primary
function shall be made so as to ensure that, to the maximum extent
feasible, the path of travel to the altered area and the restrooms,
telephones, and drinking fountains serving the altered area, are readily
accessible to and usable by individuals with disabilities, including
individuals who use wheelchairs, unless the cost and scope of such
alterations is disproportionate to the cost of the overall alteration.
(b) Primary function. A ``primary function'' is a major activity for
which the facility is intended. Areas that contain a primary function
include, but are not limited to, the customer services lobby of a bank,
the dining area of a cafeteria, the meeting rooms in a conference
center, as well as offices and other work areas in which the activities
of the public accommodation or other private entity using the facility
are carried out. Mechanical rooms, boiler rooms, supply storage rooms,
employee lounges or locker rooms, janitorial closets, entrances,
corridors, and restrooms are not areas containing a primary function.
(c) Alterations to an area containing a primary function. (1)
Alterations that affect the usability of or access to an area containing
a primary function include, but are not limited to--
(i) Remodeling merchandise display areas or employee work areas in a
department store;
(ii) Replacing an inaccessible floor surface in the customer service
or employee work areas of a bank;
(iii) Redesigning the assembly line area of a factory; or
(iv) Installing a computer center in an accounting firm.
(2) For the purposes of this section, alterations to windows,
hardware, controls, electrical outlets, and signage shall not be deemed
to be alterations that affect the usability of or access to an area
containing a primary function.
(d) Landlord/tenant: If a tenant is making alterations as defined in
Sec. 36.402 that would trigger the requirements of this section, those
alterations by the tenant in areas that only the tenant occupies do not
trigger a path of travel obligation upon the landlord with respect to
areas of the facility under the landlord's authority, if those areas are
not otherwise being altered.
(e) Path of travel. (1) A ``path of travel'' includes a continuous,
unobstructed way of pedestrian passage by means of which the altered
area may be approached, entered, and exited, and which connects the
altered area with an exterior approach (including sidewalks, streets,
and parking areas), an entrance to the facility, and other parts of the
facility.
(2) An accessible path of travel may consist of walks and sidewalks,
curb ramps and other interior or exterior pedestrian ramps; clear floor
paths through lobbies, corridors, rooms, and other improved areas;
parking access aisles; elevators and lifts; or a combination of these
elements.
(3) For the purposes of this part, the term ``path of travel'' also
includes the restrooms, telephones, and drinking fountains serving the
altered area.
(f) Disproportionality. (1) Alterations made to provide an
accessible path of travel to the altered area will be deemed
disproportionate to the overall alteration when the cost exceeds 20% of
the cost of the alteration to the primary function area.
(2) Costs that may be counted as expenditures required to provide an
accessible path of travel may include:
(i) Costs associated with providing an accessible entrance and an
accessible route to the altered area, for example, the cost of widening
doorways or installing ramps;
(ii) Costs associated with making restrooms accessible, such as
installing grab bars, enlarging toilet stalls, insulating pipes, or
installing accessible faucet controls;
(iii) Costs associated with providing accessible telephones, such as
relocating the telephone to an accessible height, installing
amplification devices, or installing a telecommunications device for
deaf persons (TDD);
(iv) Costs associated with relocating an inaccessible drinking
fountain.
(g) Duty to provide accessible features in the event of
disproportionality. (1) When the cost of alterations necessary to make
the path of travel to the altered area fully accessible is
disproportionate to the cost of the overall alteration, the path of
travel shall be made accessible to the extent that it can be made
accessible without incurring disproportionate costs.
(2) In choosing which accessible elements to provide, priority
should be
given to those elements that will provide the greatest access, in the
following order:
(i) An accessible entrance;
(ii) An accessible route to the altered area;
(iii) At least one accessible restroom for each sex or a single
unisex restroom;
(iv) Accessible telephones;
(v) Accessible drinking fountains; and
(vi) When possible, additional accessible elements such as parking,
storage, and alarms.
(h) Series of smaller alterations. (1) The obligation to provide an
accessible path of travel may not be evaded by performing a series of
small alterations to the area served by a single path of travel if those
alterations could have been performed as a single undertaking.
(2)(i) If an area containing a primary function has been altered
without providing an accessible path of travel to that area, and
subsequent alterations of that area, or a different area on the same
path of travel, are undertaken within three years of the original
alteration, the total cost of alterations to the primary function areas
on that path of travel during the preceding three year period shall be
considered in determining whether the cost of making that path of travel
accessible is disproportionate.
(ii) Only alterations undertaken after January 26, 1992, shall be
considered in determining if the cost of providing an accessible path of
travel is disproportionate to the overall cost of the alterations.
Sec. 36.404 Alterations: Elevator exemption.
(a) This section does not require the installation of an elevator in
an altered facility that is less than three stories or has less than
3,000 square feet per story, except with respect to any facility that
houses a shopping center, a shopping mall, the professional office of a
health care provider, a terminal, depot, or other station used for
specified public transportation, or an airport passenger terminal.
(1) For the purposes of this section, professional office of a
health care provider means a location where a person or entity regulated
by a State to provide professional services related to the physical or
mental health of an individual makes such services available to the
public. The facility that houses a professional office of a health care
provider only includes floor levels housing by at least one health care
provider, or any floor level designed or intended for use by at least
one health care provider.
(2) For the purposes of this section, shopping center or shopping
mall means--
(i) A building housing five or more sales or rental establishments;
or
(ii) A series of buildings on a common site, connected by a common
pedestrian access route above or below the ground floor, that is either
under common ownership or common control or developed either as one
project or as a series of related projects, housing five or more sales
or rental establishments. For purposes of this section, places of public
accommodation of the types listed in paragraph (5) of the definition of
place of public accommodation in Sec. 36.104 are considered sales or
rental establishments. The facility housing a shopping center or
shopping mall only includes floor levels housing at least one sales or
rental establishment, or any floor level designed or intended for use by
at least one sales or rental establishment.
(b) The exemption provided in paragraph (a) of this section does not
obviate or limit in any way the obligation to comply with the other
accessibility requirements established in this subpart. For example,
alterations to floors above or below the accessible ground floor must be
accessible regardless of whether the altered facility has an elevator.
Sec. 36.405 Alterations: Historic preservation.
(a) Alterations to buildings or facilities that are eligible for
listing in the National Register of Historic Places under the National
Historic Preservation Act (16 U.S.C. 470 et seq.), or are designated as
historic under State or local law, shall comply to the maximum extent
feasible with section 4.1.7 of appendix A to this part.
(b) If it is determined under the procedures set out in section
4.1.7 of appendix A that it is not feasible to provide physical access
to an historic property that is a place of public accommodation in a
manner that will not threaten or destroy the historic significance of
the building or facility, alternative methods of access shall be
provided pursuant to the requirements of subpart C of this part.
Sec. 36.406 Standards for new construction and alterations.
(a) New construction and alterations subject to this part shall
comply with the standards for accessible design published as appendix A
to this part (ADAAG).
(b) The chart in the appendix to this section provides guidance to
the user in reading appendix A to this part (ADAAG) together with
subparts A through D of this part, when determining requirements for a
particular facility.
Appendix to Sec. 36.406
This chart has no effect for purposes of compliance or enforcement.
It does not necessarily provide complete or mandatory information.
------------------------------------------------------------------------
Subparts A-D ADAAG
------------------------------------------------------------------------
Application, General............ 36.102(b)(3): 1, 2, 3, 4.1.1.
public
accommodations.
36.102(c):
commercial
facilities.
36.102(e): public
entities.
36.103 (other
laws).
36.401 (``for
first
occupancy'').
36.402(a)
(alterations).
Definitions..................... 36.104: commercial 3.5 Definitions,
facilities, including:
facility, place addition,
of public alteration,
accommodation, building,
private club, element,
public facility, space,
accommodation, story.
public entity,
religious entity.
36.401(d)(1)(ii), 4.1.6(j),
36.404(a)(2): technical
shopping center infeasibility.
or shopping mall.
36.401(d)(1)(i),
36.404(a)(1):
professional
office of a
health care
provider.
36.402:
alteration;
usability.
36.402(c): to the
maximum extent
feasible.
New Construction:............... 36.401(a) General. 4.1.2.
General......................... 36.401(b) 4.1.3.
Commercial
facilities in
private
residences.
36.207 Places of
public
accommodation in
private
residences.
Work Areas...................... .................. 4.1.1(3).
Structural Impracticability..... 36.401(c)......... 4.1.1(5)(a).
Elevator Exemption.............. 36.401(d)......... 4.1.3(5).
36.404............
Other Exceptions................ .................. 4.1.1(5), 4.1.3(5)
and throughout.
Alterations: General............ 36.401(b):
commercial
facilities in
private
residences.
36.402............ 4.1.6(1).
Alterations Affecting an Area 36.403............ 4.1.6(2).
Containing A Primary Function;
Path of Travel;
Disproportionality.
Alterations: Special Technical .................. 4.1.6(3).
Provisions.
Additions....................... 36.401-36.405..... 4.1.5.
Historic Preservation........... 36.405............ 4.1.7.
Technical Provisions............ .................. 4.2 through 4.35.
Restaurants and Cafeterias...... .................. 5.
Medical Care Facilities......... .................. 6.
Business and Mercantile......... .................. 7.
Libraries....................... .................. 8.
Transient Lodging (Hotels, .................. 9.
Homeless Shelters, Etc.).
Transportation Facilities....... .................. 10.
------------------------------------------------------------------------
[Order No. 1513-91, 56 FR 35592, July 26, 1991, as amended by Order No.
1836-94, 59 FR 2675, Jan. 18, 1994]
[[Page 511]]
Sec. 36.407 Temporary suspension of certain detectable warning
requirements.
The detectable warning requirements contained in sections 4.7.7,
4.29.5, and 4.29.6 of appendix A to this part are suspended temporarily
until July 26, 1998.
[Order No. 2043-96, 61 FR 39324, July 29, 1996]
Secs. 36.408--36.499 [Reserved]
Subpart E--Enforcement
Sec. 36.501 Private suits.
(a) General. Any person who is being subjected to discrimination on
the basis of disability in violation of the Act or this part or who has
reasonable grounds for believing that such person is about to be
subjected to discrimination in violation of section 303 of the Act or
subpart D of this part may institute a civil action for preventive
relief, including an application for a permanent or temporary
injunction, restraining order, or other order. Upon timely application,
the court may, in its discretion, permit the Attorney General to
intervene in the civil action if the Attorney General or his or her
designee certifies that the case is of general public importance. Upon
application by the complainant and in such circumstances as the court
may deem just, the court may appoint an attorney for such complainant
and may authorize the commencement of the civil action without the
payment of fees, costs, or security. Nothing in this section shall
require a person with a disability to engage in a futile gesture if the
person has actual notice that a person or organization covered by title
III of the Act or this part does not intend to comply with its
provisions.
(b) Injunctive relief. In the case of violations of Sec. 36.304,
Secs. 36.308, 36.310(b), 36.401, 36.402, 36.403, and 36.405 of this
part, injunctive relief shall include an order to alter facilities to
make such facilities readily accessible to and usable by individuals
with disabilities to the extent required by the Act or this part. Where
appropriate, injunctive relief shall also include requiring the
provision of an auxiliary aid or service, modification of a policy, or
provision of alternative methods, to the extent required by the Act or
this part.
Sec. 36.502 Investigations and compliance reviews.
(a) The Attorney General shall investigate alleged violations of the
Act or this part.
(b) Any individual who believes that he or she or a specific class
of persons has been subjected to discrimination prohibited by the Act or
this part may request the Department to institute an investigation.
(c) Where the Attorney General has reason to believe that there may
be a violation of this part, he or she may initiate a compliance review.
Sec. 36.503 Suit by the Attorney General.
Following a compliance review or investigation under Sec. 36.502, or
at any other time in his or her discretion, the Attorney General may
commence a civil action in any appropriate United States district court
if the Attorney General has reasonable cause to believe that--
(a) Any person or group of persons is engaged in a pattern or
practice of discrimination in violation of the Act or this part; or
(b) Any person or group of persons has been discriminated against in
violation of the Act or this part and the discrimination raises an issue
of general public importance.
Sec. 36.504 Relief.
(a) Authority of court. In a civil action under Sec. 36.503, the
court--
(1) May grant any equitable relief that such court considers to be
appropriate, including, to the extent required by the Act or this part--
(i) Granting temporary, preliminary, or permanent relief;
(ii) Providing an auxiliary aid or service, modification of policy,
practice, or procedure, or alternative method; and
(iii) Making facilities readily accessible to and usable by
individuals with disabilities;
(2) May award other relief as the court considers to be appropriate,
including monetary damages to persons aggrieved when requested by the
Attorney General; and
(3) May, to vindicate the public interest, assess a civil penalty
against the entity in an amount
(i) Not exceeding $50,000 for a first violation; and
(ii) Not exceeding $100,000 for any subsequent violation.
(b) Single violation. For purposes of paragraph (a) (3) of this
section, in determining whether a first or subsequent violation has
occurred, a determination in a single action, by judgment or settlement,
that the covered entity has engaged in more than one discriminatory act
shall be counted as a single violation.
(c) Punitive damages. For purposes of paragraph (a)(2) of this
section, the terms ``monetary damages'' and ``such other relief'' do not
include punitive damages.
(d) Judicial consideration. In a civil action under Sec. 36.503, the
court, when considering what amount of civil penalty, if any, is
appropriate, shall give consideration to any good faith effort or
attempt to comply with this part by the entity. In evaluating good
faith, the court shall consider, among other factors it deems relevant,
whether the entity could have reasonably anticipated the need for an
appropriate type of auxiliary aid needed to accommodate the unique needs
of a particular individual with a disability.
Sec. 36.505 Attorneys fees.
In any action or administrative proceeding commenced pursuant to the
Act or this part, the court or agency, in its discretion, may allow the
prevailing party, other than the United States, a reasonable attorney's
fee, including litigation expenses, and costs, and the United States
shall be liable for the foregoing the same as a private individual.
Sec. 36.506 Alternative means of dispute resolution.
Where appropriate and to the extent authorized by law, the use of
alternative means of dispute resolution, including settlement
negotiations, conciliation, facilitation, mediation, factfinding,
minitrials, and arbitration, is encouraged to resolve disputes arising
under the Act and this part.
Sec. 36.507 Effect of unavailability of technical assistance.
A public accommodation or other private entity shall not be excused
from compliance with the requirements of this part because of any
failure to receive technical assistance, including any failure in the
development or dissemination of any technical assistance manual
authorized by the Act.
Sec. 36.508 Effective date.
(a) General. Except as otherwise provided in this section and in
this part, this part shall become effective on January 26, 1992.
(b) Civil actions. Except for any civil action brought for a
violation of section 303 of the Act, no civil action shall be brought
for any act or omission described in section 302 of the Act that
occurs--
(1) Before July 26, 1992, against businesses with 25 or fewer
employees and gross receipts of $1,000,000 or less.
(2) Before January 26, 1993, against businesses with 10 or fewer
employees and gross receipts of $500,000 or less.
(c) Transportation services provided by public accommodations. Newly
purchased or leased vehicles required to be accessible by Sec. 36.310
must be readily accessible to and usable by individuals with
disabilities, including individuals who use wheelchairs, if the
solicitation for the vehicle is made after August 25, 1990.
Secs. 36.509--36.599 [Reserved]
Subpart F--Certification of State Laws or Local Building Codes
Sec. 36.601 Definitions.
Assistant Attorney General means the Assistant Attorney General for
Civil Rights or his or her designee.
Certification of equivalency means a final certification that a code
meets or exceeds the minimum requirements of title III of the Act for
accessibility and usability of facilities covered by that title.
Code means a State law or local building code or similar ordinance,
or part thereof, that establishes accessibility requirements.
Model code means a nationally recognized document developed by a
private
entity for use by State or local jurisdictions in developing codes as
defined in this section. A model code is intended for incorporation by
reference or adoption in whole or in part, with or without amendment, by
State or local jurisdictions.
Preliminary determination of equivalency means a preliminary
determination that a code appears to meet or exceed the minimum
requirements of title III of the Act for accessibility and usability of
facilities covered by that title.
Submitting official means the State or local official who--
(1) Has principal responsibility for administration of a code, or is
authorized to submit a code on behalf of a jurisdiction; and
(2) Files a request for certification under this subpart.
Sec. 36.602 General rule.
On the application of a State or local government, the Assistant
Attorney General may certify that a code meets or exceeds the minimum
requirements of the Act for the accessibility and usability of places of
public accommodation and commercial facilities under this part by
issuing a certification of equivalency. At any enforcement proceeding
under title III of the Act, such certification shall be rebuttable
evidence that such State law or local ordinance does meet or exceed the
minimum requirements of title III.
Sec. 36.603 Filing request for certification.
(a) A submitting official may file a request for certification of a
code under this subpart.
(b) Before filing a request for certification of a code, the
submitting official shall ensure that--
(1) Adequate public notice of intention to file a request for
certification, notice of a hearing, and notice of the location at which
the request and materials can be inspected is published within the
relevant jurisdiction;
(2) Copies of the proposed request and supporting materials are made
available for public examination and copying at the office of the State
or local agency charged with administration and enforcement of the code;
and
(3) The local or State jurisdiction holds a public hearing on the
record, in the State or locality, at which the public is invited to
comment on the proposed request for certification.
(c) The submitting official shall include the following materials
and information in support of the request:
(1) The text of the jurisdiction's code; any standard, regulation,
code, or other relevant document incorporated by reference or otherwise
referenced in the code; the law creating and empowering the agency; any
relevant manuals, guides, or any other interpretive information issued
that pertain to the code; and any formal opinions of the State Attorney
General or the chief legal officer of the jurisdiction that pertain to
the code;
(2) Any model code or statute on which the pertinent code is based,
and an explanation of any differences between the model and the
pertinent code;
(3) A transcript of the public hearing required by paragraph (b)(3)
of this section; and
(4) Any additional information that the submitting official may wish
to be considered.
(d) The submitting official shall file the original and one copy of
the request and of supporting materials with the Assistant Attorney
General. The submitting official shall clearly label the request as a
``request for certification'' of a code. A copy of the request and
supporting materials will be available for public examination and
copying at the offices of the Assistant Attorney General in Washington,
DC. The submitting official shall ensure that copies of the request and
supporting materials are available for public examination and copying at
the office of the State or local agency charged with administration and
enforcement of the code. The submitting official shall ensure that
adequate public notice of the request for certification and of the
location at which the request and materials can be inspected is
published within the relevant jurisdiction.
(e) Upon receipt of a request for certification, the Assistant
Attorney General may request further information that he or she
considers relevant to the
determinations required to be made under this subpart.
(Approved by the Office of Management and Budget under control number
1190-0005)
[56 FR 35592, July 26, 1991, as amended by Order No. 1679-93, 58 FR
17522, Apr. 5, 1993]
Sec. 36.604 Preliminary determination.
After consultation with the Architectural and Transportation
Barriers Compliance Board, the Assistant Attorney General shall make a
preliminary determination of equivalency or a preliminary determination
to deny certification.
Sec. 36.605 Procedure following preliminary determination of
equivalency.
(a) If the Assistant Attorney General makes a preliminary
determination of equivalency under Sec. 36.604, he or she shall inform
the submitting official, in writing, of that preliminary determination.
The Assistant Attorney General shall also--
(1) Publish a notice in the Federal Register that advises the public
of the preliminary determination of equivalency with respect to the
particular code, and invite interested persons and organizations,
including individuals with disabilities, during a period of at least 60
days following publication of the notice, to file written comments
relevant to whether a final certification of equivalency should be
issued;
(2) After considering the information received in response to the
notice described in paragraph (a) of this section, and after publishing
a separate notice in the Federal Register, hold an informal hearing in
Washington, DC at which interested persons, including individuals with
disabilities, are provided an opportunity to express their views with
respect to the preliminary determination of equivalency; and
(b) The Assistant Attorney General, after consultation with the
Architectural and Transportation Barriers Compliance Board, and
consideration of the materials and information submitted pursuant to
this section and Sec. 36.603, shall issue either a certification of
equivalency or a final determination to deny the request for
certification. He or she shall publish notice of the certification of
equivalency or denial of certification in the Federal Register.
Sec. 36.606 Procedure following preliminary denial of certification.
(a) If the Assistant Attorney General makes a Preliminary
determination to deny certification of a code under Sec. 36.604, he or
she shall notify the submitting official of the determination. The
notification may include specification of the manner in which the code
could be amended in order to qualify for certification.
(b) The Assistant Attorney General shall allow the submitting
official not less than 15 days to submit data, views, and arguments in
opposition to the preliminary determination to deny certification. If
the submitting official does not submit materials, the Assistant
Attorney General shall not be required to take any further action. If
the submitting official submits materials, the Assistant Attorney
General shall evaluate those materials and any other relevant
information. After evaluation of any newly submitted materials, the
Assistant Attorney General shall make either a final denial of
certification or a preliminary determination of equivalency.
Sec. 36.607 Effect of certification.
(a)(1) A certification shall be considered a certification of
equivalency only with respect to those features or elements that are
both covered by the certified code and addressed by the standards
against which equivalency is measured.
(2) For example, if certain equipment is not covered by the code,
the determination of equivalency cannot be used as evidence with respect
to the question of whether equipment in a building built according to
the code satisfies the Act's requirements with respect to such
equipment. By the same token, certification would not be relevant to
construction of a facility for children, if the regulations against
which equivalency is measured do not address children's facilities.
(b) A certification of equivalency is effective only with respect to
the particular edition of the code for which certification is granted.
Any amendments or other changes to the code
after the date of the certified edition are not considered part of the
certification.
(c) A submitting official may reapply for certification of
amendments or other changes to a code that has already received
certification.
Sec. 36.608 Guidance concerning model codes.
Upon application by an authorized representative of a private entity
responsible for developing a model code, the Assistant Attorney General
may review the relevant model code and issue guidance concerning whether
and in what respects the model code is consistent with the minimum
requirements of the Act for the accessibility and usability of places of
public accommodation and commercial facilities under this part.
Appendix A to Part 36--Standards for Accessible Design (Not electronically accesible)
[56 FR 35592, July 26, 1991, as amended by Order No. 1679-93, 58 FR
17522, Apr. 5, 1993; Order No. 1836-94, 59 FR 2675, Jan. 18, 1994]
Appendix B to Part 36--Preamble to Regulation on Nondiscrimination on
the Basis of Disability by Public Accommodations and in Commercial
Facilities (Published July 26, 1991)
Note: For the convenience of the reader, this appendix contains the
text of the preamble to the final regulation on nondiscrimination on the
basis of disability by public accommodations and in commercial
facilities beginning at the heading ``Section-by-Section Analysis and
Response to Comments'' and ending before ``List of Subjects in 28 CFR
part 36'' (56 FR 35546, July 26, 1991).
Section-By-Section Analysis and Response to Comments
Subpart A--General
Section 36.101 Purpose
Section 36.101 states the purpose of the rule, which is to
effectuate title III of the Americans with Disabilities Act of 1990.
This title prohibits discrimination on the basis of disability by public
accommodations, requires places of public accommodation and commercial
facilities to be designed, constructed, and altered in compliance with
the accessibility standards established by this part, and requires that
examinations or courses related to licensing or certification for
professional or trade purposes be accessible to persons with
disabilities.
Section 36.102 Application
Section 36.102 specifies the range of entities and facilities that
have obligations under the final rule. The rule applies to any public
accommodation or commercial facility as those terms are defined in
Sec. 36.104. It also applies, in accordance with section 309 of the ADA,
to private entities that offer examinations or courses related to
applications, licensing, certification, or credentialing for secondary
or postsecondary education, professional, or trade purposes. Except as
provided in Sec. 36.206, ``Retaliation or coercion,'' this part does not
apply to individuals other than public accommodations or to public
entities. Coverage of private individuals and public entities is
discussed in the preamble to Sec. 36.206.
As defined in Sec. 36.104, a public accommodation is a private
entity that owns, leases or leases to, or operates a place of public
accommodation. Section 36.102(b)(2) emphasizes that the general and
specific public accommodations requirements of subparts B and C obligate
a public accommodation only with respect to the operations of a place of
public accommodation. This distinction is drawn in recognition of the
fact that a private entity that meets the regulatory definition of
public accommodation could also own, lease or lease to, or operate
facilities that are not places of public accommodation. The rule would
exceed the reach of the ADA if it were to apply the public
accommodations requirements of subparts B and C to the operations of a
private entity that do not involve a place of public accommodation.
Similarly, Sec. 36.102(b)(3) provides that the new construction and
alterations requirements of subpart D obligate a public accommodation
only with respect to facilities used as, or designed or constructed for
use as, places of public accommodation or commercial facilities.
On the other hand, as mandated by the ADA and reflected in
Sec. 36.102(c), the new construction and alterations requirements of
subpart D apply to a commercial facility whether or not the facility is
a place of public accommodation, or is owned, leased, leased to, or
operated by a public accommodation.
Section 36.102(e) states that the rule does not apply to any private
club, religious entity, or public entity. Each of these terms is defined
in Sec. 36.104. The exclusion of private clubs and religious entities is
derived from section 307 of the ADA; and the exclusion of public
entities is based on the statutory definition of public accommodation in
section 301(7) of the ADA, which excludes entities other than private
entities from coverage under title III of the ADA.
Section 36.103 Relationship to Other Laws
Section 36.103 is derived from sections 501 (a) and (b) of the ADA.
Paragraph (a) provides that, except as otherwise specifically provided
by this part, the ADA is not intended to apply lesser standards than are
required under title V of the Rehabilitation Act of 1973, as amended (29
U.S.C. 790-794), or the regulations implementing that title. The
standards of title V of the Rehabilitation Act apply for purposes of the
ADA to the extent that the ADA has not explicitly adopted a different
standard from title V. Where the ADA explicitly provides a different
standard from section 504, the ADA standard applies to the ADA, but not
to section 504. For example, section 504 requires that all federally
assisted programs and activities be readily accessible to and usable by
individuals with handicaps, even if major structural alterations are
necessary to make a program accessible. Title III of the ADA, in
contrast, only requires alterations to existing facilities if the
modifications are ``readily achievable,'' that is, able to be
accomplished easily and without much difficulty or expense. A public
accommodation that is covered under both section 504 and the ADA is
still required to meet the ``program accessibility'' standard in order
to comply with section 504, but would not be in violation of the ADA
unless
[[Page 608]]
it failed to make ``readily achievable'' modifications. On the other
hand, an entity covered by the ADA is required to make ``readily
achievable'' modifications, even if the program can be made accessible
without any architectural modifications. Thus, an entity covered by both
section 504 and title III of the ADA must meet both the ``program
accessibility'' requirement and the ``readily achievable'' requirement.
Paragraph (b) makes explicit that the rule does not affect the
obligation of recipients of Federal financial assistance to comply with
the requirements imposed under section 504 of the Rehabilitation Act of
1973.
Paragraph (c) makes clear that Congress did not intend to displace
any of the rights or remedies provided by other Federal laws or other
State or local laws (including State common law) that provide greater or
equal protection to individuals with disabilities. A plaintiff may
choose to pursue claims under a State law that does not confer greater
substantive rights, or even confers fewer substantive rights, if the
alleged violation is protected under the alternative law and the
remedies are greater. For example, assume that a person with a physical
disability seeks damages under a State law that allows compensatory and
punitive damages for discrimination on the basis of physical disability,
but does not allow them on the basis of mental disability. In that
situation, the State law would provide narrower coverage, by excluding
mental disabilities, but broader remedies, and an individual covered by
both laws could choose to bring an action under both laws. Moreover,
State tort claims confer greater remedies and are not preempted by the
ADA. A plaintiff may join a State tort claim to a case brought under the
ADA. In such a case, the plaintiff must, of course, prove all the
elements of the State tort claim in order to prevail under that cause of
action.
A commenter had concerns about privacy requirements for banking
transactions using telephone relay services. Title IV of the Act
provides adequate protections for ensuring the confidentiality of
communications using the relay services. This issue is more
appropriately addressed by the Federal Communications Commission in its
regulation implementing title IV of the Act.
Section 36.104 Definitions
``Act.'' The word ``Act'' is used in the regulation to refer to the
Americans with Disabilities Act of 1990, Pub. L. 101-336, which is also
referred to as the ``ADA.''
``Commerce.'' The definition of ``commerce'' is identical to the
statutory definition provided in section 301(l) of the ADA. It means
travel, trade, traffic, commerce, transportation, or communication among
the several States, between any foreign country or any territory or
possession and any State, or between points in the same State but
through another State or foreign country. Commerce is defined in the
same manner as in title II of the Civil Rights Act of 1964, which
prohibits racial discrimination in public accommodations.
The term ``commerce'' is used in the definition of ``place of public
accommodation.'' According to that definition, one of the criteria that
an entity must meet before it can be considered a place of public
accommodation is that its operations affect commerce. The term
``commerce'' is similarly used in the definition of ``commercial
facility.''
The use of the phrase ``operations affect commerce'' applies the
full scope of coverage of the Commerce Clause of the Constitution in
enforcing the ADA. The Constitution gives Congress broad authority to
regulate interstate commerce, including the activities of local business
enterprises (e.g., a physician's office, a neighborhood restaurant, a
laundromat, or a bakery) that affect interstate commerce through the
purchase or sale of products manufactured in other States, or by
providing services to individuals from other States. Because of the
integrated nature of the national economy, the ADA and this final rule
will have extremely broad application.
``Commercial facilities'' are those facilities that are intended for
nonresidential use by a private entity and whose operations affect
commerce. As explained under Sec. 36.401, ``New construction,'' the new
construction and alteration requirements of subpart D of the rule apply
to all commercial facilities, whether or not they are places of public
accommodation. Those commercial facilities that are not places of public
accommodation are not subject to the requirements of subparts B and C
(e.g., those requirements concerning auxiliary aids and general
nondiscrimination provisions).
Congress recognized that the employees within commercial facilities
would generally be protected under title I (employment) of the Act.
However, as the House Committee on Education and Labor pointed out,
``[t]o the extent that new facilities are built in a manner that make[s]
them accessible to all individuals, including potential employees, there
will be less of a need for individual employers to engage in reasonable
accommodations for particular employees.'' H.R. Rep. No. 485, 101st
Cong., 2d Sess., pt. 2, at 117 (1990) [hereinafter ``Education and Labor
report'']. While employers of fewer than 15 employees are not covered by
title I's employment discrimination provisions, there is no such
limitation with respect to new construction covered under title III.
Congress chose not to so limit the new construction provisions because
of its desire for a uniform requirement of accessibility in new
construction, because accessibility can be accomplished easily in the
design and construction
[[Page 609]]
stage, and because future expansion of a business or sale or lease of
the property to a larger employer or to a business that is a place of
public accommodation is always a possibility.
The term ``commercial facilities'' is not intended to be defined by
dictionary or common industry definitions. Included in this category are
factories, warehouses, office buildings, and other buildings in which
employment may occur. The phrase, ``whose operations affect commerce,''
is to be read broadly, to include all types of activities reached under
the commerce clause of the Constitution.
Privately operated airports are also included in the category of
commercial facilities. They are not, however, places of public
accommodation because they are not terminals used for ``specified public
transportation.'' (Transportation by aircraft is specifically excluded
from the statutory definition of ``specified public transportation.'')
Thus, privately operated airports are subject to the new construction
and alteration requirements of this rule (subpart D) but not to subparts
B and C. (Airports operated by public entities are covered by title II
of the Act.) Places of public accommodation located within airports,
such as restaurants, shops, lounges, or conference centers, however, are
covered by subparts B and C of this part.
The statute's definition of ``commercial facilities'' specifically
includes only facilities ``that are intended for nonresidential use''
and specifically exempts those facilities that are covered or expressly
exempted from coverage under the Fair Housing Act of 1968, as amended
(42 U.S.C. 3601-3631). The interplay between the Fair Housing Act and
the ADA with respect to those facilities that are ``places of public
accommodation'' was the subject of many comments and is addressed in the
preamble discussion of the definition of ``place of public
accommodation.''
``Current illegal use of drugs.'' The phrase ``current illegal use
of drugs'' is used in Sec. 36.209. Its meaning is discussed in the
preamble for that section.
``Disability.'' The definition of the term ``disability'' is
comparable to the definition of the term ``individual with handicaps''
in section 7(8)(B) of the Rehabilitation Act and section 802(h) of the
Fair Housing Act. The Education and Labor Committee report makes clear
that the analysis of the term ``individual with handicaps'' by the
Department of Health, Education, and Welfare in its regulations
implementing section 504 (42 FR 22685 (May 4, 1977)) and the analysis by
the Department of Housing and Urban Development in its regulation
implementing the Fair Housing Amendments Act of 1988 (54 FR 3232 (Jan.
23, 1989)) should also apply fully to the term ``disability'' (Education
and Labor report at 50).
The use of the term ``disability'' instead of ``handicap'' and the
term ``individual with a disability'' instead of ``individual with
handicaps'' represents an effort by the Congress to make use of up-to-
date, currently accepted terminology. The terminology applied to
individuals with disabilities is a very significant and sensitive issue.
As with racial and ethnic terms, the choice of words to describe a
person with a disability is overlaid with stereotypes, patronizing
attitudes, and other emotional connotations. Many individuals with
disabilities, and organizations representing such individuals, object to
the use of such terms as ``handicapped person'' or ``the handicapped.''
In other recent legislation, Congress also recognized this shift in
terminology, e.g., by changing the name of the National Council on the
Handicapped to the National Council on Disability (Pub. L. 100-630).
In enacting the Americans with Disabilities Act, Congress concluded
that it was important for the current legislation to use terminology
most in line with the sensibilities of most Americans with disabilities.
No change in definition or substance is intended nor should be
attributed to this change in phraseology.
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.
If an individual meets any one of these three tests, he or she is
considered to be an individual with a disability for purposes of
coverage under the Americans with Disabilities Act.
Congress adopted this same basic definition of ``disability,'' first
used in the Rehabilitation Act of 1973 and in the Fair Housing
Amendments Act of 1988, for a number of reasons. It has worked well
since it was adopted in 1974. There is a substantial body of
administrative interpretation and judicial precedent on this definition.
Finally, it would not be possible to guarantee comprehensiveness by
providing a list of specific disabilities, especially because new
disorders may be recognized in the future, as they have since the
definition was first established in 1974.
Test A--A Physical or Mental Impairment That Substantially Limits One or
More of the Major Life Activities of Such Individual
Physical or mental impairment. Under the first test, an individual
must have a physical or mental impairment. As explained in paragraph (1)
(i) of the definition, ``impairment'' means any physiological disorder
or condition, cosmetic disfigurement, or anatomical
[[Page 610]]
loss affecting one or more of the following body systems: Neurological;
musculoskeletal; special sense organs (including speech organs that are
not respiratory, such as vocal cords, soft palate, and tongue);
respiratory, including speech organs; cardiovascular; reproductive;
digestive; genitourinary; hemic and lymphatic; skin; and endocrine. It
also means any mental or psychological disorder, such as mental
retardation, organic brain syndrome, emotional or mental illness, and
specific learning disabilities. This list closely tracks the one used in
the regulations for section 504 of the Rehabilitation Act of 1973 (see,
e.g., 45 CFR 84.3(j)(2)(i)).
Many commenters asked that ``traumatic brain injury'' be added to
the list in paragraph (1)(i). Traumatic brain injury is already included
because it is a physiological condition affecting one of the listed body
systems, i.e., ``neurological.'' Therefore, it was unnecessary for the
Department to add the term to the regulation.
It is not possible to include a list of all the specific conditions,
contagious and noncontagious diseases, or infections that would
constitute physical or mental impairments because of the difficulty of
ensuring the comprehensiveness of such a list, particularly in light of
the fact that other conditions or disorders may be identified in the
future. However, the list of examples in paragraph (1)(iii) of the
definition includes: Orthopedic, visual, speech and hearing impairments;
cerebral palsy; epilepsy, muscular dystrophy, multiple sclerosis,
cancer, heart disease, diabetes, mental retardation, emotional illness,
specific learning disabilities, HIV disease (symptomatic or
asymptomatic), tuberculosis, drug addiction, and alcoholism.
The examples of ``physical or mental impairments'' in paragraph
(1)(iii) are the same as those contained in many section 504
regulations, except for the addition of the phrase ``contagious and
noncontagious'' to describe the types of diseases and conditions
included, and the addition of ``HIV disease (symptomatic or
asymptomatic)'' and ``tuberculosis'' to the list of examples. These
additions are based on the ADA committee reports, caselaw, and official
legal opinions interpreting section 504. In School Board of Nassau
County v. Arline, 480 U.S. 273 (1987), a case involving an individual
with tuberculosis, the Supreme Court held that people with contagious
diseases are entitled to the protections afforded by section 504.
Following the Arline decision, this Department's Office of Legal Counsel
issued a legal opinion that concluded that symptomatic HIV disease is an
impairment that substantially limits a major life activity; therefore it
has been included in the definition of disability under this part. The
opinion also concluded that asymptomatic HIV disease is an impairment
that substantially limits a major life activity, either because of its
actual effect on the individual with HIV disease or because the
reactions of other people to individuals with HIV disease cause such
individuals to be treated as though they are disabled. See Memorandum
from Douglas W. Kmiec, Acting Assistant Attorney General, Office of
Legal Counsel, Department of Justice, to Arthur B. Culvahouse, Jr.,
Counsel to the President (Sept. 27, 1988), reprinted in Hearings on S.
933, the Americans with Disabilities Act, Before the Subcomm. on the
Handicapped of the Senate Comm. on Labor and Human Resources, 101st
Cong., 1st Sess. 346 (1989). The phrase ``symptomatic or asymptomatic''
was inserted in the final rule after ``HIV disease'' in response to
commenters who suggested that the clarification was necessary to give
full meaning to the Department's opinion.
Paragraph (1)(iv) of the definition states that the phrase
``physical or mental impairment'' does not include homosexuality or
bisexuality. These conditions were never considered impairments under
other Federal disability laws. Section 511(a) of the statute makes clear
that they are likewise not to be considered impairments under the
Americans with Disabilities Act.
Physical or mental impairment does not include simple physical
characteristics, such as blue eyes or black hair. Nor does it include
environmental, cultural, economic, or other disadvantages, such as
having a prison record, or being poor. Nor is age a disability.
Similarly, the definition does not include common personality traits
such as poor judgment or a quick temper where these are not symptoms of
a mental or psychological disorder. However, a person who has these
characteristics and also has a physical or mental impairment may be
considered as having a disability for purposes of the Americans with
Disabilities Act based on the impairment.
Substantial limitation of a major life activity. Under Test A, the
impairment must be one that ``substantially limits a major life
activity.'' Major life activities include such things as caring for
one's self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working. For example, a person who is
paraplegic is substantially limited in the major life activity of
walking, a person who is blind is substantially limited in the major
life activity of seeing, and a person who is mentally retarded is
substantially limited in the major life activity of learning. A person
with traumatic brain injury is substantially limited in the major life
activities of caring for one's self, learning, and working because of
memory deficit, confusion, contextual difficulties, and inability to
reason appropriately.
A person is considered an individual with a disability for purposes
of Test A, the first prong of the definition, when the individual's
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important life activities are restricted as to the conditions, manner,
or duration under which they can be performed in comparison to most
people. A person with a minor, trivial impairment, such as a simple
infected finger, is not impaired in a major life activity. A person who
can walk for 10 miles continuously is not substantially limited in
walking merely because, on the eleventh mile, he or she begins to
experience pain, because most people would not be able to walk eleven
miles without experiencing some discomfort.
The Department received many comments on the proposed rule's
inclusion of the word ``temporary'' in the definition of ``disability.''
The preamble indicated that impairments are not necessarily excluded
from the definition of ``disability'' simply because they are temporary,
but that the duration, or expected duration, of an impairment is one
factor that may properly be considered in determining whether the
impairment substantially limits a major life activity. The preamble
recognized, however, that temporary impairments, such as a broken leg,
are not commonly regarded as disabilities, and only in rare
circumstances would the degree of the limitation and its expected
duration be substantial: Nevertheless, many commenters objected to
inclusion of the word ``temporary'' both because it is not in the
statute and because it is not contained in the definition of
``disability'' set forth in the title I regulations of the Equal
Employment Opportunity Commission (EEOC). The word ``temporary'' has
been deleted from the final rule to conform with the statutory language.
The question of whether a temporary impairment is a disability must be
resolved on a case-by-case basis, taking into consideration both the
duration (or expected duration) of the impairment and the extent to
which it actually limits a major life activity of the affected
individual.
The question of whether a person has a disability should be assessed
without regard to the availability of mitigating measures, such as
reasonable modifications or auxiliary aids and services. For example, a
person with hearing loss is substantially limited in the major life
activity of hearing, even though the loss may be improved through the
use of a hearing aid. Likewise, persons with impairments, such as
epilepsy or diabetes, that substantially limit a major life activity,
are covered under the first prong of the definition of disability, even
if the effects of the impairment are controlled by medication.
Many commenters asked that environmental illness (also known as
multiple chemical sensitivity) as well as allergy to cigarette smoke be
recognized as disabilities. The Department, however, declines to state
categorically that these types of allergies or sensitivities are
disabilities, because the determination as to whether an impairment is a
disability depends on whether, given the particular circumstances at
issue, the impairment substantially limits one or more major life
activities (or has a history of, or is regarded as having such an
effect).
Sometimes respiratory or neurological functioning is so severely
affected that an individual will satisfy the requirements to be
considered disabled under the regulation. Such an individual would be
entitled to all of the protections afforded by the Act and this part. In
other cases, individuals may be sensitive to environmental elements or
to smoke but their sensitivity will not rise to the level needed to
constitute a disability. For example, their major life activity of
breathing may be somewhat, but not substantially, impaired. In such
circumstances, the individuals are not disabled and are not entitled to
the protections of the statute despite their sensitivity to
environmental agents.
In sum, the determination as to whether allergies to cigarette
smoke, or allergies or sensitivities characterized by the commenters as
environmental illness are disabilities covered by the regulation must be
made using the same case-by-case analysis that is applied to all other
physical or mental impairments. Moreover, the addition of specific
regulatory provisions relating to environmental illness in the final
rule would be inappropriate at this time pending future consideration of
the issue by the Architectural and Transportation Barriers Compliance
Board, the Environmental Protection Agency, and the Occupational Safety
and Health Administration of the Department of Labor.
Test B--A Record of Such an Impairment
This test is intended to cover those who have a record of an
impairment. As explained in paragraph (3) of the rule's definition of
disability, this includes a person who has a history of an impairment
that substantially limited a major life activity, such as someone who
has recovered from an impairment. It also includes persons who have been
misclassified as having an impairment.
This provision is included in the definition in part to protect
individuals who have recovered from a physical or mental impairment that
previously substantially limited them in a major life activity.
Discrimination on the basis of such a past impairment is prohibited.
Frequently occurring examples of the first group (those who have a
history of an impairment) are persons with histories of mental or
emotional illness, heart disease, or cancer; examples of the second
group (those who have been misclassified as having an impairment) are
persons who have been misclassified as having mental retardation or
mental illness.
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Test C--Being Regarded as Having Such an Impairment
This test, as contained in paragraph (4) of the definition, is
intended to cover persons who are treated by a private entity or public
accommodation as having a physical or mental impairment that
substantially limits a major life activity. It applies when a person is
treated as if he or she has an impairment that substantially limits a
major life activity, regardless of whether that person has an
impairment.
The Americans with Disabilities Act uses the same ``regarded as''
test set forth in the regulations implementing section 504 of the
Rehabilitation Act. See, e.g., 28 CFR 42.540(k)(2)(iv), which provides:
(iv) ``Is regarded as having an impairment'' means (A) Has a
physical or mental impairment that does not substantially limit major
life activities but that is treated by a recipient as constituting such
a limitation; (B) Has a physical or mental impairment that substantially
limits major life activities only as a result of the attitudes of others
toward such impairment; or (C) Has none of the impairments defined in
paragraph (k)(2)(i) of this section but is treated by a recipient as
having such an impairment.
The perception of the private entity or public accommodation is a
key element of this test. A person who perceives himself or herself to
have an impairment, but does not have an impairment, and is not treated
as if he or she has an impairment, is not protected under this test. A
person would be covered under this test if a restaurant refused to serve
that person because of a fear of ``negative reactions'' of others to
that person. A person would also be covered if a public accommodation
refused to serve a patron because it perceived that the patron had an
impairment that limited his or her enjoyment of the goods or services
being offered.
For example, persons with severe burns often encounter
discrimination in community activities, resulting in substantial
limitation of major life activities. These persons would be covered
under this test based on the attitudes of others towards the impairment,
even if they did not view themselves as ``impaired.''
The rationale for this third test, as used in the Rehabilitation Act
of 1973, was articulated by the Supreme Court in Arline, 480 U.S. 273
(1987). The Court noted that, although an individual may have an
impairment that does not in fact substantially limit a major life
activity, the reaction of others may prove just as disabling. ``Suc