Access, Accessibility and Advocacy
The Americans with Disabilities Act (ADA) is a federal civil rights law that provides protections against discrimination based on disability. It guarantees equal opportunity for individuals with disabilities in places of public accommodation, employment, transportation, state and local government services, and telecommunications.
Title II of the ADA protects individuals with disabilities from disability-based discrimination in the services, programs, or activities of public entities. In addition, Title II requires that individuals with disabilities have access to existing public transportation. This publication provides an overview of the rights of people with disabilities under Title II of the ADA.
Public Entities
A public entity includes any state or local government; any department, agency, or branch of a state or local government; and certain transportation authorities (such as Amtrak). Title II applies to all programs, activities, and services provided or operated by state and local governments, including activities of state legislatures and courts, town meetings, police and fire departments, motor vehicle licensing, and employment.[1]
The federal government is not a state or local government and is not covered by Title II. Discrimination in this area may be covered by Section 504 of the Rehabilitation Act.
Private businesses or organizations that provide goods and services to the public are also not considered public entities under Title II. This area of discrimination is covered by Title III of the ADA.
Accessibility
Public entities must operate in a manner that is accessible to individuals with disabilities. This means individuals with disabilities have the right of equal access to programs, services, and activities offered by public entities.
Is accessibility limited to physical access?
No. Accessibility is not limited to physical access. It also includes a responsibility to provide effective communication to individuals with disabilities that is as effective as communications with others.
The public entity must provide the appropriate auxiliary aids and services to individuals with hearing, vision, or speech impairments when necessary to ensure effective communication.[2] A public entity may not charge for the use of an auxiliary aid or service.[3]
Examples of auxiliary aids and services:
- Qualified interpreters
- Note takers
- Screen readers
- Computer Aided Real-Time Transcription (CART) services
- Video interpreting services
- Assistive listening headsets
- Television captioning and decoders
- Telecommunications devices for deaf persons (TDDs)
- Videotext displays, readers, taped texts, audio recordings, and written materials in Braille, large print, or electronic formats.
Telephone emergency services, including 911 services, must provide direct, equal access to their services for individuals with disabilities who use TDDs.[4]
Reasonable Modification or Accommodation
A public entity must reasonably modify its policies, practices, or procedures if needed to make the public entity’s programs, services, or activities accessible for a person with a disability.[5] Changes in such policies, practices, or procedures are called reasonable modifications (also called accommodations).
Examples of modifications and accommodations
- A city office building modifies its rule prohibiting animals in the building in order to admit service animals assisting individuals with disabilities.
- A public library’s books are located on upper floors having no elevator. In order to provide equal access, the library staff accommodates patrons who use wheelchairs by retrieving books from these floors.
- A public university scheduled a French class in an inaccessible building. The university moves the class to a building that is readily accessible to provide access to the class for a student who uses a wheelchair.
Is there a surcharge associated with reasonable modifications and/or accommodations?
No. A public entity cannot make an individual with a disability pay to cover the cost of measures, such as providing auxiliary aids or barrier removal, that are required to provide that individual with nondiscriminatory treatment. [6]
Undue burden exception
A public entity is not required to provide an accommodation or modification if it would create a significant alteration in services or an “undue” financial or administrative burden. Where an accommodation would result in great difficulty or expense, the public entity must determine if another reasonable accommodation or modification is available.[7]
Health and safety exception
A public entity may set safety requirements that are necessary for safe operation of its program. Health and safety requirements must be based on actual risks and not on speculation, stereotypes, or generalizations about the ability of persons with disabilities to participate in an activity.[8]
Example
A recreational program coordinator denied individuals who use wheelchairs the right to participate in a city-sponsored scuba diving class based on speculation that the individuals in wheelchairs could not swim well enough to participate. A decision based on this type of speculation or generalization would be a violation of Title II.
A public entity may exclude an individual from its services, programs, or activities, if the individual is a direct threat to the health or safety of others. However, before excluding the individual, the public entity must make an individualized assessment to judge:
- The severity of the risk;
- The likelihood that injury would actually occur, and
- Whether any reasonable modifications would mitigate the risk.[9]
Are separate programs allowed for people with disabilities under Title II?
Public entities may not provide services or benefits to individuals with disabilities through programs that are separate or different, unless the separate programs are necessary to ensure that services are equally effective.[10]
Even when separate programs are permitted, an individual with disabilities has the right to choose to participate in the regular program.[11] In addition, state and local governments may not require an individual with a disability to accept a special accommodation or benefit if he or she chooses not to accept it.
Example
It would be acceptable for a city to offer recreational programs specially designed for children with mobility impairments, but it would be a violation of Title II if the city refused to allow children with disabilities to participate in its other recreational programs.
New Construction and Alterations
Title II of the ADA does not require public entities to modify existing buildings to eliminate all barriers, but it does establish a high standard of accessibility for new buildings that were designed, constructed or altered for the use of a public entity after January 26, 1992.[12]
Public entities must ensure that newly constructed building and facilities are free of structural and communication barriers that restrict use by individuals with disabilities.[13]
When a public entity makes alterations to an existing building, it must also ensure that the altered portions are accessible.[14]
Public Transportation
Title II seeks to ensure that individuals with disabilities have access to existing public transportation services. All new buses must be accessible.[15] Transit authorities must provide special transportation services for individuals with disabilities who cannot use fixed-bus route services.[16]
Complaints
Any individual who believes that he or she is a victim of discrimination prohibited by Title II of the ADA may file a complaint. Complaints should be in writing, signed by the complainant or an authorized representative, and should contain the complainant’s name and address and describe the public entities alleged discriminatory action.
Non-Transportation Issues
Each public entity that employs more than 50 people should have its own (1) internal grievance procedure, and (2) designated ADA Coordinator who is responsible for resolution of complaints.[17] To file a complaint with your public entity and hopefully resolve the issues, contact the public entity and ask for its ADA Coordinator and/or complaint process.
Learn more about using ADA coordinators to resolve disability discrimination disputes:
- Information for attorneys
- Information for self-advocates
- Sample letters
You can also file a complaint against the public entity with the U.S. Department of Justice:
Online: http://www.ada.gov/complaint/
Fax: (202) 307-1197
By Mail:
US Department of Justice
950 Pennsylvania Avenue, NW
Civil Rights Division
Disability Rights Section – 1425 NYAV
Washington, DC 20530
Complaints should include: your name, your full contact information, the name of the public entity that violated Title II of the ADA, a brief description of the Title II violations (including what happened, the dates they occurred, and the names of people involved), photocopies of any documents that support the complaint, and, if relevant, information on how you communicate effectively (for example, if you need written communications in an electronic format or you use video relay services).
Transportation Issues
Each public entity that operates transportation services should also have its own (1) internal grievance procedure, and (2) designated ADA Coordinator who is responsible for coordinating efforts to comply with its responsibilities under Title II of the ADA. To file a complaint with your public entity and hopefully resolve the issues, contact the public entity and ask for its ADA Coordinator and/or complaint process.
You can also file a complaint with the Federal Transit Administration (FTA) (part of the U.S. Department of Transportation). To file a complaint:
- Write a brief description of the Title II violations (including what happened, the dates they occurred, and the names of people involved),
- Fill out and print the FTA’s complaint form (available at https://www.transit.dot.gov/regulations-and-guidance/civil-rights-ada/file-complaint-fta), and
- Mail the printed form and your description of what happened, along with photocopies of any documents that support your complaint (if you have them), to:
Federal Transit Administration
Office of Civil Rights
Attention: Complaint Team
East Building, 5th Floor – TCR
1200 New Jersey Ave., SE
Washington, DC 20590
Footnotes
[4] U.S. Dept. of Justice, Civil Rights Division, Disability Rights Section, Access for 9-1-1 and Telephone Emergency Services (July 15, 1998), available at http://www.ada.gov/911ta.htm.
[10] 28 C.F.R. § 35.130(b)(1)(iv).
[12] 28 C.F.R. § 35.151(a)(1).
[13] 28 C.F.R. § 35.151(a)(1).