What Are Public Accommodations?

Many conversations about the Americans with Disabilities Act center on the accessibility of public accommodations. But what are public accommodations? This edition of Ask About the ADA features an excerpt from the Northeast ADA Center's webinar about Title III of the law, which describes how public facilities should be made accessible for people with disabilities. For a transcript of today's episode, please visit the Ask About the ADA podcast feed on BuzzSprout.

View more Northeast ADA webinar archives.

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Transcript

JOE ZESSKI: Hello. Welcome to Ask About the ADA, the podcast where we answer your questions about the Americans with Disabilities Act and how it applies to everyday life on this episode of Ask about the ADA we're going to go back to one of our webinar archives and give you a chance to hear the audio from that webinar. This one came out earlier this year. It's part of the ADA 101 series. It was ADA 101.4, an overview of Title III of the ADA. 

On this webinar, you hear myself and my colleague, Jennifer Perry. This is going to be a little bit longer than our typical episode. So I hope you sit back and enjoy listening. 

Welcome, everybody. This is the webinar ADA 101.4, Title III of the ADA. This is part of our continuing series of ADA 101 webinars. This one is going to focus on public accommodations, which we'll get into all during the next hour. So we have a lot to cover. 

I am Joe Zesski, the program manager here at the Northeast ADA Center. Joining me today, again, will be Jennifer Perry. For those of you who listened to our Title II webinar, or the webinar we did introducing an overview of the ADA, you'll be familiar with her voice. And you'll hear her in just a few minutes talking more about different aspects of Title III. 

She is our physical access specialist here at the Northeast ADA Center. For those who are not familiar, the Northeast ADA Center is based at the Yang-Tan Institute at Cornell University. We are one of the 10 ADA Centers that provide training, technical assistance, and information on the Americans with Disabilities Act. Part of that is done through our telephone hotline, 1-800-949-4232. You can call and get free confidential technical assistance on the Americans with Disabilities Act and how it applies to you and your situation. And we serve New York, New Jersey, Puerto Rico, and the US Virgin Islands. But be aware there's an ADA Center that serves every region of the US, including its territories. 

Just a reminder that the information we provide is for technical assistance and guidance purposes. We are not lawyers and we do not provide legal advice. 

Let's begin to dive in a little bit to Title III. Title III covers public accommodations, as I mentioned earlier. And that includes different aspects of them. Public accommodations we'll define in just a moment. You might think of them shorthand as businesses, but also covers commercial facilities. And so when you look at Title III, you're going to be considering principles that address access to their programs, their physical facilities, as well as their goods and services. 

Important to note that this section of the ADA is enforced by the Department of Justice. So if someone has an issue with a Title III entity, you would contact the Department of Justice to file the ADA-based complaint. 

So public accommodations, as I mentioned, it covers a variety, both physical facilities in terms of buildings and structures; it also covers their goods and services. And under Title III, of course, you're talking about the interaction of the public, particularly people with disabilities, with these businesses and facilities. Obviously, different people will have different needs, and that will lead to different responsibilities in terms of providing physical accessibility, in terms of perhaps modifying policies. It may result in needing to provide effective communication. 

But at its core, the requirement of Title III is that people with disabilities have the right to full and equal enjoyment of the goods and services and facilities of a Title III public accommodation, and they have an equal opportunity or need to be provided an equal opportunity to participate in or benefit from the goods and services that a public accommodation would offer. In general terms, this means that equal access, equal opportunity needs to be done to the particular or the regular goods, services, and facilities that a public accommodations offers. 

Separate accommodations or separate goods and services generally are not permitted unless, unless it's needed to ensure that a person with disability has the same chance to access and participate in goods, services, activities as a person who doesn't have a disability. And let me dig in a little bit more to what a public accommodation is. 

You heard me refer earlier to public accommodations as businesses. And that's sort of a common shorthand. But the term public accommodation actually covers 12 categories defined by the Department of Justice that cover a wide range of organizations and businesses that impact commerce and fall into one of 12 categories. These are so wide ranging that they, for most intents and purposes, cover any business that is going to be open to the public and serving the public in general. If they provide goods and services that are open to anyone in the public, odds are it's going to be covered under Title III of the ADA. 

So as you see, we have some examples here on the slides, some of the ones that are maybe more common you might think of, such as stores, or hotels, restaurants. These are examples of different categories. 

Note that it does include things like recreation facilities, museums if they are privately controlled, education facilities or places of education, such as private colleges, private universities, or private schools. It includes medical facilities and social service places, and it includes places like malls as well. So if, again, it opened to the general public, they provide goods and services, they participate in commerce, generally the place will be covered as a public accommodation. 

One note here, though, is that religious entities are not subject to Title III. Yes, they are open to the public and you might say they provide services, but there is explicitly an exemption from Title III for religious entities, and also for private clubs. But the term private clubs is very exclusive. It just doesn't mean any club. There are very specific criteria that need to be met, and that is a high standard to have a private cloud be exempt from Title III. 

Now, in terms of Title III, a lot of these places, or almost all of them, are going to have physical locations. And sometimes when you have a place, let's say, like a mall, you have, obviously, individual stores located within the mall. When you have multiple, I'm going to say owners, an owner and a renter in a location like a mall or like a doctor's office, maybe in a shopping center, outdoor shopping center, both parties are still covered under Title III. 

Now that being said, responsibility for who needs to provide physical access might be determined by a lease or contract. But as far as the ADA is concerned, in general, both are going to be covered and responsible for providing physical accessibility. But the details of what that is might be established in a renter's lease. 

Let's go to our next slide. And this one deals with commercial facilities. You heard me mention that term earlier but I haven't really focused on it. That's because commercial facilities are not open to the general public. They are private businesses, however. So think here, as you see on the slide, in terms of factories or warehouses. In other words, they are places of business, but the general public is not going to go there. 

And so these places are subject to physical access requirements. You'll hear Jen talk about more in just a few moments, things like the 2010 ADA standards for accessible design. And so any new construction would need to follow those standards. And if there were alterations to the current physical structure, then those commercial facilities would need to make sure that they're complying with the most recent-- in this case, 2010-- ADA standards for accessible design. Now with commercial facilities, they don't need to meet all of the criteria for Title III. The primary responsibility for commercial facilities is to meet the physical accessibility requirements. 

And this is just a little intro. We're going to ask, which of the following places would be covered by Title III. We're not going to do all of these. I'll start off by giving you a couple-- for example, a private dentist's office, because it's private, saying that it's owned by an individual or a health group, it's going to be considered Title III. A takeout restaurant, somewhere you go, you pick up food, that is going to be covered by Title III as well because it's a restaurant engaged in public commerce and the general public can access it. 

What about a church picnic in a local park? Would that be a Title III public accommodation, again, a church picnic in a local park. Well, for this one, because it's a church function-- and again, remember, I slid that in, about religious entities are exempt from Title III-- technically, this would not fall under Title III. So this is a case where, yes, it's open, in a public setting, as people typically think of it, but it's controlled by a religious organization, so it would be exempt. What's next, Michelle? 

MICHELLE: We have a university library. 

JOE ZESSKI: This one's actually tricky. And sorry, there's always one of these snuck in. It says university library, and it depends on the type of university. So there technically is not a wrong answer for this one. If it's a privately controlled university, then it's going to be covered under Title III. But let's say it's a state university, like in our region, with Rutgers University, which is a state university in New Jersey. That is going to be a Title II entity, because it's controlled by state local government. So again, that one's a little bit tricky. 

The next one, actually, the hair salon in a private home, I will just review that really quickly. Again, somewhat tricky, it is going to be covered as Title III, as long as you're talking about the space that belongs to the hair salon. Outside of where the hair salon is, or the route to it, it will not be covered under Title III. 

The next one is the mom and pop bakery. That even though the name gives you a sense that it's small, it's still open to the public and engaging in commerce, so again, yes, that would be Title III. The next one, apartment complexes, if it's a private apartment controlled by a group, likely is not going to be covered. In fact, typically, apartment complexes are not covered under the ADA, unless they're directly controlled by state or local government. While Title III does apply to places of lodging, like a hotel, an apartment complex is seen as a more permanent residence. And so those are actually not covered by the ADA. 

I will sort of speed through a couple of these last two, just in the interest of time. A swimming pool was another option. And of course, that one is going to be a place of recreation. In fact, it used to be that swimming pools were not covered and given direct standards under the old physical access requirements, if I'm correct. But in the 2010 standards, the new, revised standards, there are specific physical access requirements for swimming pools. And so if it's controlled by a private entity, like a swim club, then it might be a public accommodation. However, if it's controlled by a town, let's say it's a town or municipal swimming pool, it'll be covered by Title II. But either way, there are going to be physical access requirements for it. 

Lastly, the country club-- and that may well be a private club. We would have to really dig in more to the workings of the country club, to make a final determination. But in broad sense it may not be covered. But again, you have to really look at the details for a country club, to determine whether or not it's a public accommodation. 

Now, all of these are impacted in one way or another, whether by Title II or Title III, with design and construction requirements and other physical access requirements. I'll hand the webinar off to Jennifer, to talk about the physical access requirements under Title III. 

JENNIFER PERRY: Thank you, Joe. So yes, we're going to talk about physical accessibility now or structural accessibility. Obviously, and I think as most people likely already know, things that are newly constructed or, obviously, built from the ground up now, most people expect that the ADA is going to require them to be physically accessible. And this, of course, applies to places of public accommodation, like all those things that Joe just mentioned. So they're required to be accessible. 

And this requirement has been in place under the ADA since January 26 of 1993. So that was the beginning date, if you will, for when things that were constructed that fall under Title III of the ADA, like restaurants, and shopping malls, and movie theaters, they've been required to be accessible since that time. 

And we had an older standard for accessible design that was in place from 1993 up until March 15 of 2012, when a new-- I should say newer, at this point-- a standard for accessible design became mandatory. So the currently enforceable standards for accessible design are called the 2010 ADA Standards for Accessible Design. So those are now the enforceable standards that people have to comply with, when you're engaging in new constructions. 

So as I said, new construction is pretty straightforward. People understand that accessibility has to be incorporated in. But where things always get trickier is when we talk about alterations to existing buildings. And alterations, including those to public accommodations that were built prior to that new construction date of 1993 that I mentioned, are required to be accessible to and usable by people with disabilities. 

Alteration is generally defined as a change that is going to affect the usability of a building. So any time you engage in alterations, again, it's expected that those alterations are going to be accessible to the maximum extent feasible. But what is an alteration? An alteration includes things like remodeling of a space, or renovation, reconstruction, including historic restoration, and generally changes to structural parts or elements. And any time you rearrange the plan configuration of a room or of a building, those are generally going to be considered alterations. 

What are not considered alterations are things like normal maintenance. If you're just going into a space and perhaps painting or wallpapering, or if you're just doing something like asbestos removal, those are not considered alterations unless in some-- unless somehow, again, they affect the usability of a space. And generally, those things like paint and wallpaper are not going to affect the usability of a space. 

Now, if you get into doing things like replacing flooring, that absolutely can affect the usability of a space. So that would likely fall under the category of an alteration. And obviously, different from new construction, when you engage in alterations, from time to time the structural nature of an existing building may make it impossible to comply with all the requirements that would be in place for a building that was newly constructed. 

In that case, those things that you're altering are required to be made accessible to the extent that it is technically feasible for you to do so. There is an understanding, if you will, in the ADA standards that sometimes in alterations you cannot comply with the minimum requirements that would be in place for new construction. However, the expectation is that you still comply to the maximum extent technically feasible. 

Now, a unique requirement in the ADA is, when you engage in alterations to a building, the first thing you really have to ask yourself is, what is the primary function area of this building or of a space within a building that you are altering? Because when you alter what's known as the primary function area, you pick up a few additional obligations related to accessibility under Title III of the ADA. 

So a primary function area, let's start there. A primary function area is basically the area where major activity takes place in a building. So it's kind of like-- if you think about why is this building here, what's its purpose, that helps you determine what the primary function area is. So if you think of going to a restaurant, the primary function area would be the dining area. People go out to eat. You're sitting in the dining room. 

A primary function area of a restaurant would not be the back of the house where they're prepping the food. You don't go there to go there. You don't go to a restaurant to use the bathroom. So a bathroom would not be a primary function area in a restaurant. 

If you go to a bank, you could have multiple primary functionaries, which can occur in other facilities as well, but certainly, the customer service area, where the tellers are, that would be a primary function area. You can also have another primary function area at a bank. That would be, perhaps, where the safety deposit boxes are. So you can-- just be aware, you can have multiple primary function areas. And in an office setting, if it's a business, those offices where people are going to do their work, carry out the work of the public accommodation, those can also be a primary function area. 

So we're going through this exercise because when you're altering a primary function area-- and we'll stick with, just for example, say, if you were altering the dining area in a restaurant-- the ADA requirements require us to do a little bit more in terms of accessibility improvements. But this path of travel is what is picked up when you alter an area of primary function. 

And a path of travel is, essentially, ensuring that, if you're altering, again, that example of a dining room in a restaurant, we know that we have to provide a path of travel to get to that remodeled area of the dining room. And this path of travel is basically an unobstructed path of travel that somebody with a disability could use to get from outside of the restaurant-- that may begin at the parking area, if you have one. It may begin at a public transportation stop, if that's what serves the restaurants-- but you want to make sure that someone with a disability has a path of travel to get from outside of the restaurant, through the entrance, and then to that portion of the dining room that is being altered. 

The other unique thing about this path of travel is that it doesn't just include the actual path or the route of travel that somebody would use, but it also includes the toilet rooms that serve the remodeled dining area as well as, if they're present, any public telephones or drinking fountains that serve that remodel area. And the ADA standards tell us that we have an obligation to provide that accessible path to travel to the area that we're remodeling. And again, it's not just the actual route. It includes the toilet rooms, drinking fountains, and public telephones that serve that area. 

Now, you could be remodeling a dining room of a restaurant that's high up in a high rise building. And let's just, for argument's sake-- there would be an elevator, but let's say there wasn't an elevator. You can imagine, it would get pretty expensive to have to install an elevator to get up to this high-rise building, to this little portion of a dining room that we're altering. 

So there is a recognition, in the ADA regulations, for when it would just become disproportionate to what you're spending on the overall alteration, to provide a fully accessible path of travel. So basically, you are never required to spend more than 20% of what you are spending on the cost of the original alteration to the primary function area. 

So you don't have to spend more than 20% of what you were spending on the alterations to the dining room, in our example of the restaurant, in order to provide that path of travel for somebody to get from outside of the restaurant, again, through the entrance to the area that you are remodeling and also addressing accessibility of the toilet rooms, drinking fountains, and telephones, if those are present. I know public telephones now, you don't see them as much as we used to, but they are something that you would want to improve access to if they are provided. So this disproportionality, again, you're not required to spend more than 20% of your alteration costs to provide that path of travel. 

And I know that's really confusing. I can promise you, throughout my career there's been a lot of architects and designers that still have a hard time wrapping their brain around the, we call it the 20% rule. So please feel free, if you have questions in the future, to reach out to us. And we'd be happy to discuss this concept of disproportionality in the path of travel with you in more detail. 

So in addition to the path of travel requirements, there's also two other important alteration issues that come up under Title III. One is that there is-- it's known as the elevator exemption for Title III facilities. And this is different. So if you had a state or local government building, let's say a city hall building, the minute you have more than one story, meaning once you have two stories in a state or local government-owned or operated building, you're required to have an elevator, with very, very few exceptions, including that that second story has an occupancy of less than five people. So it's almost always you have to have an elevator. 

For Title III it's not the same. There's an exemption for Title III facilities that says that you do not have to install an elevator that is altered if the building is either less than three stories or if the building has less than 3,000 square feet per story. The exception to that exception is if you have a shopping center, a shopping mall, or the professional offices of a health care provider. Public transportation terminals or depots, airports, those areas are not eligible for this elevator exemption. 

But other than that, if you are a Title III facility, again, with either less than three stories or less than 3,000 square feet per story there is an exemption for vertical axis. It's not just for elevators. It's for any kind of vertical accessibility. 

And then, for historic buildings-- and this comes up a lot. A lot of people assume that if a building is historic, that they don't have any obligations when they go and do alterations to address accessibility. And this simply is not true. Historic buildings do have to comply with the 2010 ADA Standards for Accessible Design. However, if making a specific element or feature of a building accessible, when you're altering it, would threaten or destroy the historic significance of that structure, of a specific element, then there are certain allowances that are given specifically for historic buildings under the ADA standards. 

But I want to be clear that there is no blanket exemption when you're altering historic buildings because they are historic. So for example, if you were altering an older building and what's really historic about it is a very ornate or an ornamental type of entrance, and if you were to try to make that entrance fully accessible, in doing so, if you would threaten or destroy the historic significance of it, then the ADA says you would not have to make that entrance accessible. However, you still have to find another way into the building. So in this case, you would be allowed to use an alternate entrance that's not the main entrance or perhaps a side entrance. So you do pick up some allowances that you would not normally find, for buildings that are not historic in nature. But again, there's no blanket exemption because buildings are historic. 

So now we're going to get to one of the parts about Title III that I think is very often, still to this day-- the ADA is about to be 31 years old, and this is one of those parts of the law that, frankly, are still very much misunderstood, and this is an obligation for Title III entities to remove architectural and communication barriers in existing facilities, if it is readily achievable for somebody to do so. And readily achievable is defined in the ADA standards as easily accomplish-able and able to be carried out without much difficulty or expense. And I know that's super clear, right? 

What I want to point out about this definition is, easily accomplish-able and able to be carried out without much difficulty or expense is very much going to be a bit of a sliding scale, depending on the entity. The Department of Justice considers whoever owns a building, for example, they consider what are their financial resources. 

If they have one or two steps at the front of their building, if it's a company like Microsoft Corporation, it would probably be hard to say that it's too much of an expense for them to eliminate those two steps. But if it's a smaller mom and pop bakery, it may or may not be too expensive for them, given their financial resources. 

So there's a number of factors to consider here, first of all, the nature of the barrier. Two steps is one thing, but if it's 10 steps, that's a much bigger barrier. And it's also going to be a much more expensive barrier to try to eliminate. So the Department of Justice does take things into consideration, including the overall financial resources of an entity. 

So one key point that we-- we get a lot of calls at the ADA centers, particularly from small business owners who are not aware that they have these obligations to remove barriers if it's readily achievable for them to do so. And that's because, again, of a-- people assume that their building is grandfathered in. It's older, so my building must be grandfathered. I don't have to do any accessibility improvements. 

Or a lot of people think that they don't have to make any accessibility improvements until that time that they actually plan to do an alteration project. So maybe they think, someday when I remodel the store, that's when I'll improve accessibility. And what the ADA tells us is that Title III entities really need to always be thinking about, are there barriers to accessibility, and is it readily achievable for you to remove them, whether or not you are engaging in an alteration project? 

You just heard, a few seconds ago, when you do-- if you do have a planned alteration project, there's certainly a higher level of expectation that you will improve accessibility at that point, but it's not only triggered when you start doing alterations. So for that reason, we like to say, there's no grandfathering under the ADA. If there are barriers to accessibility and if it's readily achievable for you to remove them, the expectation is that you will do so. 

On the building code side of things, there are grandfathered provisions, absolutely. But under the ADA no one's just exempt from accessibility improvements because of the age of the building, if you will. So that's something that we always like to remind people about. 

So here are some examples of barrier removal. Obviously, it's a much lower standard than-- we're not talking about new construction. We're not talking about alterations. Again, when those things occur, we understand that we have to comply with the 2010 standards. But in barrier removal, it could be something as simple as, maybe you have those two steps at your business. Maybe you can install a ramp to overcome those two steps or providing things like curb cuts, rearranging furniture, or changing the layout so that it is more accessible for somebody that is using a wheelchair, widening doors or eliminating a turnstile, to provide an alternative accessible path. 

A few more examples that include things such as changing out your door hardware, if you have old doorknob, round doorknobs, replacing them with lever-style hardware, or installing grab bars in your toilet rooms, insulating the pipes under the laboratory sinks, installing a raised toilet seat, so there's all kinds of examples here, but these are things that, if it is readily achievable for you to do, the expectation is that you would investigate what you can do to improve access. 

So if you are looking around-- and I'm just going to continue with a place of business, because it's an easy example to use-- but if you look around your place of business and you're like, oh gosh, I actually have some barriers to accessibility. I really want to make my place more accessible, but I have limited funds. I can't fix everything. Where should I start? 

The Department of Justice has given us guidance on what those priorities are, if you want to start removing barriers. So it starts with, basically, can people get in? Can someone get into your place of business? So you want to look at your accessible approach and entrances. That would include if you have a public sidewalk out front. If you have a parking lot, do you have accessible parking? And can people get from that accessible parking area to your entrance? 

And then once they get inside your place of business, can they get to where your goods and your services are offered? That would certainly be a priority. Can people move throughout your place of business? And then your third priority, if you have toilet rooms that are available to the public, that would be your next priority, if you have funds, to improve access there. And then, finally, there's other miscellaneous items, again, you'll see your drinking fountains and public telephones, if those are provided. 

And if you're, an example of a restaurant, maybe you could even do something like consider your menu, maybe having a menu made in Braille, perhaps. It's not a requirement under the ADA, but it's certainly something you could do to improve access for your customers. So under that priority four, you certainly have the ability to get a little bit creative with how you can improve access. 

And then ultimately, in some cases, it may not be possible. It may not be easily accomplish-able and able to be carried out without much difficulty or expense for you to remove a barrier. Like I said, maybe it's not two steps. Maybe it's 10 steps at your place of business, which is going to be an incredibly long ramp. It might involve a lift, and it's going to be expensive. So if you just can't do that, then you have to think creatively, and what else can I do to provide my goods or services to the public? 

And some examples of how you could do that are shown here. And this is not an exhaustive list, but you might want to think about, can I provide curbside service or home delivery of my goods or services? Can I relocate to another accessible location? If someone's in a grocery store and the soup can is at the very top of the shelving and somebody can't reach it, certainly, your staff is trained, let us help you. We will help you with that. And staff training is also key in helping to let people have access to your goods and services, if there are barriers to accessibility. 

And I did want to note that if you can't remove a barrier because it's not readily achievable for you to do so and you have to take these alternate steps, remember that you cannot charge extra to people with disabilities, for providing these other types of services, like curbside service or home delivery. 

Here's just one quick question specifically about barrier removal. Again, we are not talking about new construction. We are not talking about alterations to an entrance. But if we have an older building-- remember, that means it was built prior to 1993-- and they have a portable ramp that they use for deliveries, can't they just use that in order to provide access for people with disabilities? So it's a portable ramp. It's used for deliveries. Can't they just use that for access? Yes, but I have a whole lot of what ifs here. 

So they could use it, but only if, only if installing a permanent ramp is not readily achievable for that business, so remember, easily accomplish-able without much difficulty or expense. And in addition to that, our example said it was a portable ramp used for deliveries. Usually those are pretty steep. If it's a really steep ramp, then no, that would not work. 

But a portable ramp could be used if it still met the technical requirements for ramps that are in the ADA standards for design. So that would mean the slope doesn't exceed 1 to 12, if necessary, it has handrails on both sides, has a firm, stable non-slip surface. If all of those things are kept in place, then potentially, yes, under the barrier removal standard this ramp could be used. Again, if it's properly secured, if staff is trained on how to use it safely, that could be an option, again, if installing a permanent ramp is not readily achievable. 

So that's something unique, under the barrier removal standard, that would never work. Using a portable ramp in new construction, that would never-- that would not fly. But under the barrier removal standard, that's something that may work. 

So after all this, if you have questions and you're looking around your business and you're wondering, oh my gosh, what barriers do I have? Here's a great resource that you can refer to. It's the ADA checklist. And the website to access it is ADAchecklist.org. It was done in partnership by the New England ADA Center and The Institute for Human-Centered Design. It is an excellent resource that you can use. It walks you through how to assess your business. 

You can also always call your local ADA center, if you have questions about accessibility. But it certainly is a resource that many people have found useful, many Title III entities have found useful, in trying to determine where there are barriers to accessibility. And the checklist also provides some recommendations on what you can do to remedy those barriers, if you come up with some. 

So maintenance of accessible features, I did not want to leave this out. Once you build a new building or once you alter an existing building, it's important to remember the importance to maintain the accessible features of that building. So obviously, from time-to-time things are going to break down. Elevators are going to have problems, and they might be temporarily out of service. That in itself is not a violation of the Americans with Disabilities Act. 

But what would be problematic is if that elevator broke down and it wasn't addressed or repaired for days, weeks, or months on end. So the expectation is that any time accessible features are not working, that they are quickly addressed, and so that they are maintained as accessible, for people with disabilities. 

JOE ZESSKI: And I think this is where I'll pick up, Jennifer. For public accommodations-- and you heard Jennifer mentioned this as she was talking about ways to readily remove barriers, ways to readily-- that are readily achievable, to remove barriers. You actually heard some examples of what I'm about to talk about, and that is, public accommodations are required to make reasonable modifications to policies, practices, and procedures. And that's done in order to make sure that people with disabilities have the same opportunity and the same chance to access their goods, services, and programs that a business, or a public accommodation, to be more precise, offers. 

And so there are a lot of different ways to think about reasonable modifications. One that Jennifer mentioned earlier, she mentioned staff at a store assisting a customer who is not able to reach it because of their disability, reach a soup can on a very high shelf. Typically, the store wouldn't retrieve items for a person, but this individual who has a disability has a barrier to accessing the goods, in this case. And so a reasonable modification of the store's policy would be to have someone assist and get the can of soup down for that person. 

Another type of example might be, let's say you had a private health provider that did medical diagnostics, and they had a patient come who used a mobility-- used a wheelchair for mobility. And they weren't able to transfer to a piece of equipment because it was inaccessible for one reason or another. A reasonable modification for the health care provider would be to assist that person to transfer safely to the medical diagnostic equipment so that they could have the procedure done, whatever it might be, a bone density scan, mammography, or some other type of medical diagnostic. 

We do have an example that is based on one of the top areas that we get questions about here at the Northeast ADA Center and, I think, as well across the whole ADA national network, and that is service animals. And so it's probably one of the premier examples of reasonable modifications. Let's say a business, a store has a no pets policy. But someone shows up with a dog and they inform the store that this is their service animal, their service dog. Generally speaking, the store is going to be required to allow the person to shop with their service dog. Even though they have a no pets policy, they must make a modification to their policy to allow the person to shop with their service dog so that they don't discriminate and the person being able to access and enjoy their goods and services. 

So again, this is probably one of the top three or so areas that we get questions about at the Northeast ADA along with reasonable accommodations on the job and also about facility access, but this is a very common issue. And so we use it here as an example of reasonable modification. 

Because we brought up the subject, let me just briefly mention service animals here. There is a specific definition for what a service animal is, under Title III of the ADA, in the regulations from the Department of Justice. A service dog-- a service animal is a dog individually trained to perform a specific task or work for a person with a disability. There is one possible exception to it being a dog, and that would be being a miniature horse. If you want to find out more about that, I encourage you to look on the Northeast ADAs website. We have a short article and a sheet there about miniature horses and service animals. But on the whole, a service animal will need to be a dog. 

And one of the most common areas that we receive questions about, both from businesses and from individuals with disabilities, is what can a business ask? What can a public accommodation ask? And there are two questions that a public accommodation can ask about a service animal. They can ask, what task has the dog been trained to perform? So again, a store, a hotel, a privately-owned museum, they can ask, what task has the dog been trained to perform? 

And keep in mind, too, the task doesn't have to be something that may be readily apparent. So for example, there are psychiatric service animals. And there are dogs that are diabetes alert dogs. And I realize I did it out of order, the two questions. The first question that a public accommodation can ask, is this indeed a service animal? So the two points are-- is this a service animal? What task has it been trained to perform? 

A public accommodation can't ask for a demonstration of it, because many services can't be demonstrated on demand. And so the Department of Justice has clarified that demonstrations cannot be asked for. Keep in mind, too, there's no special licenses that are required for service animals under the ADA. There is no federal registry. And so not only can a public accommodation not ask for a license, there are, in fact, no such licenses under the ADA that have any weight or merit. 

And we do want to make sure that we talk about effective communication. In the most basic sense, we've been talking about equal access for people with disabilities to public accommodations. And the same is true in terms of communication. And so in order for a person with a disability to have an equal level of communication, it has to be as clear and understandable for the person with a disability as for someone who does not have a disability. Or it may be that a person has a companion with them who happens to have a communication-related disability, and so effective communication must be provided to them. 

And generally, public accommodations have to make sure that they provide effective communication, unless it would cause an undue burden, which is significant difficulty or expense. So let's say that just because something costs money to provide effective communication, let's say a large print of a menu, that's probably an example of something that would be very affordable. But let's say a doctor's office needs to provide a sign language interpreter. Yes, it may be expensive, but the business is still responsible for providing it, to ensure that effective communication. 

Now that being said, the ultimate decision of what to provide to offer effective communication, what auxiliary aid or service is offered in order to ensure that communication, that decision is up to the public accommodation. For those of you who are with us on the Title II overview webinar, you may remember that under that part of the law the primary consideration, the choice of the individual, has to be given great weight and needs to-- generally need to be provided. Now with Title III, the communication must be effective, and the aid or service to supplement the communication must be effective. But the ultimate decision rests with the public accommodation. 

Just keep in mind that effective communication really impacts all types of interaction, whether it's person-to-person, or the website of a business, or perhaps some other forms of communication, that they share bills that, perhaps, a business sends out, the person may need an auxiliary in your service to access those. Again, almost all forms of communication are going to be covered. 

And I mentioned that effective communication impacts people who have communication-related disabilities. And to ensure effective communication, businesses might need to offer auxiliary aids or services. And auxiliary aids and services is another way of saying that they are tools or services that facilitate, that enable effective communication to take place. 

And there are different types of examples. Some are ones that you probably are more familiar with-- interpreters, sign language interpreters for people who are deaf, perhaps, for people who are blind or low vision, they may use alternate formats or assistive technology, for people who have speech-related disabilities, it might be to allow more time or perhaps to allow them to use a pocket talker, which is an assistive device. So again, those are examples of auxiliary aids or services. 

In terms of effective communication and determining it, there are different factors you have to look at, when trying to assess what's the right auxiliary aid or service. A lot of it is about the length and complexity of a communication. How important is it? How long is it going to last? Are there going to be a large group of people involved or just a few individuals? 

For example, if someone is going to a doctor, someone who is deaf going to a doctor, and they're going to be discussing a diagnosis, a sign language interpreter is going to be the appropriate form of auxiliary aid or service. Let's say that same person, though, is just stopping in the office to pay a bill and leave. Well then, providing an interpreter in that instance probably isn't necessary, where it can be done by exchanging written notes and meeting the communication need, because it's much less important in a sense or less impactful. 

So again, the ultimate decision does go to the public accommodation. But that being said, it has to be effective. And as you heard, Jennifer mentioned earlier, the same idea applies here, no surcharges, no cost to the individual receiving the auxiliary aid or service can be passed on. 

And you heard me mention websites. It's a rising topic, website accessibility, across the country. And it's certainly becoming more and more prevalent. Certainly it is, in our region here in the Northeast. And this comes from a Department of Justice letter to Representative Ted Budd of North Carolina, affirming that websites, as far as the Department of Justice is concerned, are covered by Title III and that providing accessibility to the goods, services, privileges, or activities through the website are covered under the Americans with Disabilities Act. This letter affirming this position was sent on September 25, 2018 to Representative Budd. So again, only a few years ago the Department of Justice reaffirmed this position. 

Now, the trick of it is that currently there are no official website regulations for providing accessibility and effective communication access under the ADA. By some-- you might say somewhat by consensus or by what happens in practicality, through the Department of Justice settlement agreements, and through private lawsuits, generally, people have come to agree that the Web Content Accessibility Guidelines, WCAG 2.0 AA, or 2.1, is seen as the best practice for meeting website accessibility. 

However, again, there is a little difficulty around it, because it's not an official standard under the ADA and its regulations. So it's not like the 2010 ADA Standards for Accessible Design, that Jennifer was mentioning, rather it's almost by consensus and by following what has practically happened that you come to that conclusion, so important to keep in mind that issue, in terms of website and effective communication through websites. 

Maybe we'll just give time for one question here. I don't know if-- Michelle, if there's one question we can answer, others we'll go back and answer to-- answer later, separately, but in email form. But go ahead Jennifer. I'm sorry. 

JENNIFER PERRY: Yes, thank you. Would a training program in a 501(c)(3) be considered a private business? And I can tell you that, yes, most nonprofits, unless they fall under that religious or private club umbrella that we discussed, would have to comply with Title III of the ADA. And then they went on to ask, would they be required to have closed captioning? 

And as Joe just mentioned, the obligation is to provide effective communication. So certainly, if somebody requested that, if that was their means of having effective communication, then that might be possible. And there might also be other opportunities for effective communication there as well. I don't know if you have anything to add to that, Joe. 

JOE ZESSKI: No, I think you hit it. Again, it depends a little bit on the individual and the individual circumstance, what would be effective. It could be captioning or CART. There may be possible there are other ways to supplement it. But certainly, providing captions, for example, on webinars or for in-person events, in-person trainings, providing CART for that type of situation could possibly be the right form of accommodation. 

JENNIFER PERRY: And we have another question about Kiwanis-- excuse me, membership-based organizations, such as Kiwanis-type service organizations. My gut is that, yeah, they would have to comply with Title III of the ADA. 

JOE ZESSKI: I agree. 

JENNIFER PERRY: Yeah, I don't see why they wouldn't. The private club exemption that, I think, Joe mentioned early on, is for very highly exclusive types of clubs. It's the same clubs that are exempt from the Civil Rights Act, not all private clubs. So if it's a community or a membership-based organization, most of those are still going to have obligations under Title III of the ADA. 

JOE ZESSKI: Exactly. Thanks again for listening to Ask About the ADA. I hope you enjoyed the replay of this earlier webinar from the Northeast ADA. If you have any questions about the Americans with Disabilities Act, Title III, or anything about what we do here at the Northeast ADA Center, please reach out to us at NortheastADA@cornell.edu. Please feel free to follow us on social media. 

Let me thank, again, Jennifer Perry, my colleague, for co-presenting on that webinar. And also, of course, I have to thank Grace Fairchild, our producer and editor for the show, as well as Peter Quinn of YTI, who does final edits on our podcasts. Thanks again for listening. And I hope this will help you to continue the conversation about the ADA. 

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