• The limited number of employees available to perform the function, or among whom the function can be distributed
• The task function is highly specialized, and the person in the position is hired for special expertise or ability to perform the job
146 Disaster management and preparedness the modification to make the vehicle readily accessible and usable by indi- viduals with disabilities alters the historical character of the vehicle.
Of particular importance to police, fire, and other emergency organiza- tions is Title II’s impact on 911 systems. Congress observed that many 911 telephone numbering systems were not directly accessible to hearing impaired and speech impaired individuals.1 Congress cited, as an example, a deaf woman who died of a heart attack because the police organization did not respond when her husband tried to use his telephone communication device for the deaf (TTD) to call 911.2 In response to such examples, Congress stated, “As part of its prohibition against discrimination in local and state programs and services, Title II will require local governments to ensure that these telephone emergency number systems (911) are equipped with tech- nology that will give hearing impaired and speech impaired individuals a direct line to these emergency services.3 Thus, public safety organizations had to ensure compliance with this requirement as of January 26, 1992.
Of importance for state governments is the fact that section 502 elimi- nates immunity of a state in state or federal court under the Eleventh Amend- ment for violations of the ADA. A state can be found liable in the same manner and is subject to the same remedies, including attorney fees, as private sector covered organizations.
Additionally, the claims procedures for instituting a complaint against a state or local government is significantly different than against a private cov- ered entity. The ADA provides that a claim can be filed with any of seven federal government agencies including the EEOC and the Justice Department, or EEOC may assist in such litigation. A procedure for instituting complaints against a public organization without going to court is provided in the Justice Department’s regulations. The statute of limitations on filing such a claim with the designated federal agency is 180 days from the date of the act of discrim- ination, unless the agency extends the time limitation for good cause. If the responsible agency finds a violation, the violation will be corrected through voluntary compliance, negotiations, or intervention by the Attorney General.
This procedure is totally voluntary. An individual may file suit in court without filing an administrative complaint, or an individual may file suit at any time while an administrative complaint is pending. No exhaustion of remedies is required.4
Under the Department of Justice’s regulations, public entities with fifty or more employees are required to designate at least one employee to coordinate efforts to comply with Title II.5 The public entity must also adopt grievance procedures and designate at least one employee who will be responsible for investigating any complaint filed under this grievance procedure.
1 HR (ELC) at 84-85.
2 Ibid.
3 HR (ELC) at 85.
4 H. Comm. on Educ. and Lab. Rep. at 98; S. Comm. on Lab. and Hum. Resources Rep. at 57-58.
5 28 C.F.R. section 35.107.
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Title III builds upon the foundation established by Congress under the Archi- tectural Barriers Act and the Rehabilitation Act. Title III basically extends the prohibition against discrimination that existed for facilities constructed by or financed by the federal government to all private sector public facilities.
Title III requires all goods, services, privileges, advantages, or facilities of any public place to be offered “in the most integrated setting appropriate to the needs of the [disabled] individual”, except when the individual poses a direct threat to the safety or health of others. Title III additionally prohibits discrimination against individuals with disabilities in the full and equal enjoyment of all goods, services, facilities, etc.
Title III covers public transportation offered by private sector entities in addition to all places of public accommodation without regard to size. Con- gress wanted small businesses to have time to comply with this mandatory change without fear of civil action. To achieve this, Congress provided that no civil action could be brought against businesses that employ 25 or fewer employees and have annual gross receipts of $1 million or less between January 26, 1992 and July 26, 1992. Additionally, businesses with fewer than 10 employees and having gross annual receipts of $500,000 or less were provided a grace period from January 26, 1992 to January 26, 1993 to achieve compliance. Residential accommodations, religious organizations, and pri- vate clubs were made exempt from these requirements.
Title III provides categories and examples of places requiring public accommodations:
• Places of lodging, such as inns, hotels, and motels, except for those establishments located in the proprietor’s residence and have not more than 5 rooms for rent
• Restaurants, bars, or other establishments serving food or drink
• Motion picture houses, theaters, concert halls, stadiums, or other place of exhibition or entertainment
• Bakeries, grocery stores, clothing stores, hardware stores, shopping centers, or other sales or rental establishments
• Laundromats, dry cleaners, banks, barber shops, beauty shops, travel services, funeral parlors, gas stations, offices of an accountant or law- yer, pharmacies, insurance offices, professional offices of health care providers, hospitals, or other service establishments
• Terminal depots, or other stations used for specified public transportation
• Parks, zoos, amusement parks, or other places of entertainment
• a nurseries, elementary, secondary, undergraduate schools, post-grad- uate private schools, or other places of education
• Daycare centers, senior citizen centers, homeless shelters, food banks, adoption agencys, or other social service center establishments
• Gymnasiums, health spas, bowling alleys, golf courses, or other places of exercise or recreation.1
1 Title III section 310(7).
148 Disaster management and preparedness Managers should note that it is considered discriminatory under Title III for a covered entity to fail to remove structural, architectural, and com- munication barriers from existing facilities when the removal is readily achievable, easily accomplished, and can be performed with little difficulty or expense. Factors to be considered include the nature and cost of the modification, the size and type of the business, and the financial resources of the business among others. If the removal of a barrier is not readily achievable, the covered entity may make goods and services readily available and achievable through alternative methods to individuals with disabilities.
Managers should be aware that employers may not use application or other eligibility criteria that screen out individuals with disabilities unless they can prove that doing so is necessary to providing the goods or services that they provide to the public. Title III additionally makes discriminatory the failure to make reasonable accommodations in policies, business prac- tices, and other procedures which afford access to and use of public accom- modations to individuals with disabilities; it prohibits employers from deny- ing access to goods and services because of the absence of auxiliary aids unless the providing of such auxiliary aids would fundamentally alter the nature of the goods or services or would impose an undue hardship. The ADA defines auxiliary aids and services as:
1. Qualified interpreters or other effective methods of making orally delivered materials available to individuals with hearing impairments, 2. Qualified readers, taped texts, 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 or actions.1
Title III does not specify the types of auxiliary aids that must be provided, but requires that individuals with disabilities be provided equal opportunity to obtain the same result as individuals without disabilities.
Title III provides an obligation to provide equal access, requires modi- fication of policies and procedures to remove discriminatory effects, and provides an obligation to provide auxiliary aids in addition to other require- ments. The safety and health exception and undue burden exception are available under Title III in addition to the structurally impracticable and possibly the disproportionate cost defenses for covered organizations.