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with disabilities. A place of public accommodation that is prohibited by federal law from discriminating against people because of their race or religion or national origin, 18 perfectly free to engage in blatant and invidious discrimination against people with disabilities. Indeed, under existing law, there is no federal statute that would prevent a private operator from constructing a new, totally inaccessible public accommodation.
The ADA seeks to correct this inequity. It addresses the two major ways in which discrimination keeps people with disabilities from making equal use of public accommodations. It prohibits discriminatory practices -- rulos and attitudinal barriers that bar people with disabilities from participating or participating equally. And, in certain circumstances, it prohibits architectural and communication barriers that can keep people from even getting into a facility.
SCOPE OF COVERAGE OF PUBLIC ACCOMMODATIONS UNDER THE ADA
Title III of the ADA deals with Public Accommodations and Services Operated by Private Entities" (my references are to the
conpromise version of the bill as it was passed by the Senate), Under the ADA a public accommodation means any privately operated establishment that affects commerce and is included in any of the twelve categories of establishments listed in the bill -- places of lodging, establishments serving food or drink, places of exhibition or entertainment, places of assembly, retail sales
establishaonts, service establishments, transportation terminals, places of public display or collection, parks or 300s, schools, social service establishments, and places of exercise or rocreation (sec. 301(3)). As the Senate Report notos (at p. 59). the legislation lists a few examples in each of those classes and thea, in most casar, adds the phrase "other similar to broaden the coverage to include a wide array of related types (construed liberally) of establishments. In effect, the definition of public accommodation in the ADA includes almost all establishments used by the general public as customers, clients, or visitors. The broad definition of public accommodation in the ADA is consistent with public accommodation anti-discrimination statutes in effect in some states, and incorporates broad notions of accessibility to the public that are features of the Architectural Barriers Act of 1968 (42 USC 4151).
The definition of public accommodations used in the ADA is not identical to the definition used in Title II of the Civil Rights Act of 1964. Like Title II, the ADA covers hotels, notols, restaurants, cafeterias, theaters, concert halls, sports arenas, stadiums and other places of exhibition or entertainment. When the 1964 Civil Rights Act was passed, those were the public accommodations which posed pervasive problems of discrimination to racial minorities. As ia Title II, the ADA focuses on those aspects of socioty which pose problems of discrimination; for people with disabilities, these include, in addition to those establishments covered in Title II, others such as doctors:
ofticos, grocery and other retail storos, and parks.
roflects a realistic approach to the problems faced by persons with disabilities as did Title II in 1964 for other minorities.
It simply makes no sense to bar discrimination against people
with disabilities by theaters and not by parks, or by restaurants
but not stores, or by places of entertainment but not in regard
to such critical services as doctors' offices.
It is important to note that Title II has been interpreted to cover entities not specifically mentioned, Org. of Minority
Vendors, Inc. v. Illinois Contral Gult R.R., 579 P. Supp. 574
(D.C. ill. 1983), and that Section 1981 operates to ban many
additional public accommodations from discriminating on the basis
of race and national origin. The approach underlying these developments is an attempt to broaden antidiscrimination coverage to address existing discriminatory practices without being henned in by a narrow construction of the term 'public accommodations."
Likewise, the approach taken in the definition of public
accommodation in ADA 18 to define the term to encompass all those
places in which people with disabilities have been denied or
limited in their access to facilities, services, programs, and
opportunities that are routinely made available to other members
of the goneral public.
Such is surely the 688ence of the words
While the definition of public accommodations in the ADA 18
broad, it certainly does not include every new building in the U.S. Private honos, apartments, condominiums, cooperatives, and
other private housing facilities and residences are not included (many multifamily residences are subject to the accessibility requirements of the Fair Housing Amendments Act). Buildings owned by the federal government are not included (these are already subject to accessibility requirements under the Architectural Barriors Act and Section 504). "Buildings owned by state and local governments are not within the definition of public accommodation, but most will be covered by the "public service provisions in Title II. Specifically exempted from the coverage of this Title of the bill are private clubs, and religious organizations and entities controlled by religious organizations (Sec. 307).
Another important concept in regard to the ADA's coverage of places of public accommodation is the term "facility." The Senate Report indicates that the term "facility" should be interpreted to refer to 'all or any portion of buildings, structures, sites, coaplexes, equipment, roads, walks, passageways, parking lots, or other real or personal property or laterest in such property, including the site whore the building, property, structure, or equipment is located" (Id. at p. 67). This definition is based upon the definition of the term 'facility' in Section 504 regulations (45 CFR 84.3(1)), and is sinilar to definitions of this torn in UFAS (3.5) and in the ANSI standards (3.5). (UFAS and ANSI are discussed subsequently la this testimony.)
This dofinition of the ton
facility• applies to both
indoor areas and all outdoor areas where hunan-constructod
inprovononts or itons have been added to the natural environment. It includes buildings and other erected structures, as well as vehicles, equipment, apparatus, and parking lots, walkways, sidewalks, roadways, and passageways, plus tho sitos, arsas, or settings in which such things are located.
PORMS OF DISCRIMINATION PROHIBITED
- Subsection 302(a) of the bill ostablishes the general rul. that nakos it illegal to discriainato agaiast an individual on the basis of disability in regard to the full and equal ea joyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation. Subsection 302(b) (1) provides five priciples of construction for applying the aondiscrimination nandate. These include provisions prohibiting: (1) denials of opportunities, unequal opportunities, and unnocessarily soparato opportunities; (2) segregation; (3) denial of opportunity to particpato in nonsoparato opportunity: (4) discriminatory standards, critoria, or nethods of administration; and (5) discrimination because of: association or relationship with a person with a disability.
Subsection 302(b) (2) (a) describes six types of discriminatory acts that are specifically prohibited; those iacludo: (1) discriminatory eligibility critoria;