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, is 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. It 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. prohibits discriminatory practices rules 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 Services Operated by Private Entities" (my references are to the compromise 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 establishments, service establishments, transportation terminals, places of public display or collection, parks or zoos, schools, social service establishments, and places of exercise or recreation (sec. 301(3)). As the Senate Report notes (at p. 59), the legislation lists a few examples in each of these classes and then, in most cases, 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, motels, restaurants, cafeterias, theaters, concert halls, sports arenas, stadiums and other places of exhibition or entertainment. When the 1964 Civil Rights Act was passed, these were the public accommodations which posed pervasive problems of discrimination to racial minorities. As in Title II, the ADA focuses on those aspects of society which pose problems of discrimination; for people with disabilities, these include, in addition to those establishments covered in Title II, others such as doctors' offices, grocery and other retail stores, and parks. This reflects 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 Central Gulf R.R., 579 F. 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 hemmed in by a narrow construction of the term "public accommodations." Likewise, the approach taken in the definition of public accommodation in ADA is 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 general public. Such is surely the essence of the words "public accommodations." While the definition of public accommodations in the ADA is broad, it certainly does not include every new building in the U.S. Private homes, 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 Barriers 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, complexes, equipment, roads, walks, passageways, parking lots, or other real or personal property or interest in such property, including the site where 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(i)), and is similar to definitions of this term in UFAS (3.5) and in the ANSI standards (3.5). (UFAS and ANSI are discussed subsequently in this testimony.) This definition of the term "facility" applies to both indoor areas and all outdoor areas where human-constructed improvements or items 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 the sites, areas, or settings in which such things are located. FORMS OF DISCRIMINATION PROHIBITED Subsection 302(a) of the bill establishes the general rule that makes it illegal to discriminate against an individual on the basis of disability in regard to "the full and equal enjoyment 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 nondiscrimination mandate. These include provisions prohibiting: (1) denials of opportunities, unequal opportunities, and unnecessarily separate opportunities; (2) segregation; (3) denial of opportunity to particpate in nonseparate opportunity; (4) discriminatory standards, criteria, or methods 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; these include: (1) discriminatory eligibility criteria; |