On the Importance of the Americans with Disabilities Act at 30

Reasonable Workplace Accommodations

To be eligible for an ADA accommodation, the employee’s disability and need for accommodation must be known to the employer. The request need not be phrased in terms of “reasonable accommodation” or use particular language, and the employee does not need to identify the change required. Qualified applicants and employees must receive reasonable accommodations whether they work part-time, full-time, or as probationary employees. An employee who can, even with some difficulty, perform the essential functions of his job without accommodation is still eligible for an effective and reasonable accommodation (Bell v. O’Reilly Auto Enterprises, 2020).

The accommodation requirement, however, does place a particular burden on an individual with a hidden or nonobvious impairment to disclose the claimed disability and request that the employer provide an accommodation (Hyseni & Blanck, 2021). But it places obligations on both parties to participate in good faith in an “interactive process.”

Should the interactive discussion process fail, the individual may bring a “failure-to-accommodate” claim under ADA Title I. Some courts find that an adverse employment action (i.e., denial of the terms and conditions of employment) is not a requisite element of an ADA failure-to-accommodate claim (Exby-Stolley v. Board of County Commissioners, 2020). Accordingly, in a failure-to-accommodate claim, a plaintiff typically must provide evidence that she is a qualified individual with a disability within the meaning of Title I; she works or worked for an employer that is covered by Title I; the employer, despite knowledge of the employee’s disability, did not reasonably accommodate the employee (Blanck, 2020b).

If an employee has a preexisting mental illness or anxiety disorder that qualifies as an ADA disability, and that has been exacerbated by the COVID-19 pandemic, she may be entitled to reasonable accommodation after an interactive discussion about how the accommodation may assist her to perform her job, absent an undue hardship to the employer (U.S. EEOC, 2020). Once again, an employer’s failure to provide a reasonable accommodation may violate Title I, according to most courts, regardless of whether or not the employee suffered an adverse employment action or experienced discriminatory intent (Exby-Stolley v. Board of County Commissioners, 2020; Punt v. Kelly Services, 2020).

In McCray v. Wilkie (2020), a veteran with physical and mental disabilities, arthritis, and post-traumatic stress disorder (“PTSD”), was a qualified employee of the Department of Veterans Affairs. He alleged that the government failed to accommodate his disabilities by, for example, not providing an adequate replacement van to address his arthritis and refusing to reassign him a new office for his stress and PTSD. The court found that an unreasonable delay in providing an accommodation to his known disability could amount to a failure to accommodate his disability in violation of the ADA. Whether a particular delay in the provision of accommodations violates the ADA requires an individualized inquiry into “the totality of the circumstances,” considering such matters as “the employer’s good faith in attempting to accommodate the disability, the length of the delay, the reasons for the delay, the nature, complexity, and burden of the accommodation requested, and whether the employer offered alternative accommodations.” McCray’s complaint presented a plausible ADA claim based on the delay.

The COVID-19 pandemic has brought to the fore the question of whether being allowed to work from home can be a “reasonable accommodation” under the ADA. Before the pandemic, courts typically took the view that working at home was not a reasonable accommodation (Blanck, 2020b). They reasoned that when an employee’s job involves teamwork, the work cannot be accomplished at home without diminishing the employee’s performance. Another rationale for the reluctance to recognize telecommuting as an accommodation was the perception that a particular employee who requires significant supervision cannot be adequately managed at home, and the quality or productivity of such an employee’s work might decline significantly.

In Peeples v. Clinical Support Options (2020), the plaintiff, who had moderate asthma and increased vulnerability to COVID-19, requested that her employer permit her to continue to telework from home. She advised her employer that, although she needed to telework to protect her health, she would continue to perform the essential functions of her job along with her other job-related tasks while teleworking. Plaintiff’s request to continue teleworking was denied purportedly because managers were needed in the office building to support ongoing operations.

The Peeples court found that the plaintiff was likely to succeed on her failure-to-accommodate claim. It granted her request for a preliminary injunction, which enjoined the employer from terminating her for asking to telework. The court determined that as a reasonable accommodation under ADA Title I, the plaintiff was entitled to telework for 60 days, or until further order of the court. Also during this time period, the employer was entitled to review additional medical documentation concerning the plaintiff’s alleged disability.

The prevalence of remote work and its perception as a possible ADA accommodation have continued to change with the progression of the pandemic and its economic consequences. With improvements in technology, working from home is widespread and a “new norm” in many professions and industries (U.S. EEOC, 2020). One recent study of large and small businesses during the pandemic examined the prevalence of, and productivity in, remote work—defined as working from home at least 2 days per week (Bartik et al., 2020). Disability was not included as an employee-level variable, but the study did find that having done prepandemic remote work, presumably including those who did so as an ADA accommodation, predicted the prevalence of postpandemic remote work.

In a related study, Schur et al. (2020) found that, although the COVID-19 pandemic severely affected employment for all workers, it may have a long-term “silver lining” for workers with disabilities by making remote work more acceptable and effective as an element of workplace accommodation. Schur and colleagues analyzed pre-COVID data on disability and home-based work from the American Community Survey, American Time Use Survey, and Current Population Survey. They found that both employees and self-employed workers with disabilities are more likely than those without disabilities to work from home. Yet, workers with disabilities face wage gaps due to the types of on-site and home-based work they do. This indicates that although increased opportunities for remote work may create employment opportunities for workers with disabilities, it is unlikely to mitigate their wage disparities which, in part, are due to their types of jobs.

In accord with Schur’s findings, Bartik and colleagues found that the occurrence of remote work varies by industry sector, with a relatively lower prevalence of remote work in the manufacturing, hospitality, and leisure sectors. Higher levels of employee education were associated with the tendency to work remotely during the pandemic. In industries with higher-educated and paid employees, employers reported relatively lower productivity losses from remote work, although such initial impressions require further long-term and more controlled study (Bartik et al., 2020).

Many employers reported that remote work will remain common at their companies after the pandemic subsides. While such trends likely will vary over time as a function of future labor markets, and economic and public health developments, the notion of working from home as an accommodation is now embedded in our culture as never before.

Undue Hardship and Direct Threat Defenses to Charges of Discrimination

One critique of Title I is that accommodations create economic hardships that are costly and burdensome for employers (Blanck, 2020b). The ADA’s mechanism for dealing with this criticism is the “undue hardship” defense. An undue hardship is a significant difficulty or expense when considered in light of various factors; the inquiry is highly fact-intensive. Determining undue hardship will depend on the nature, frequency, and duration of the need.

Prior to the pandemic, research showed that most accommodations did not pose a significant expense when compared with an employer’s overall budget and resources (Blanck, 2020b). Today, the U.S. EEOC (2020) recognizes that a significant loss of business revenue from the pandemic is a relevant factor in the undue hardship determination. But an employer still cannot reject outright any accommodation. It must make an individualized, interactive assessment in light of its financial constraints during the pandemic.

A direct threat to self or others is another defense to a Title I charge of discrimination and is based on considerations of workplace health and safety. But an employer may not claim undue hardship, or that an accommodation would result in a direct health threat to self or others, based simply on other employees’ or customers’ unjustified fears and prejudices, in general and about the pandemic. During the pandemic, employers might ask employees if they had experienced virus symptoms, or if they were vaccinated, to determine whether they might pose a direct threat to health in the workplace (U.S. EEOC, 2020).

Another pandemic-related note is that Title I does not require an employer to accommodate an employee without an ADA disability by, for instance, allowing her to work remotely to protect a family member with a disability from possible COVID-19 exposure (U.S. EEOC, 2020).

Title II Coverage of Governmental Facilities, Programs, and Services

Title II applies to a public entity’s physical structures, programs, and services. Courts have interpreted this reach to include city buildings, botanical gardens on the premises of a state university, publicly owned sporting arenas and theaters, city sidewalks, and voting procedures. “Physical structures” (or “facilities”) refers to any portions of buildings, structures, sites, complexes, equipment, roads, walks, passageways, parking lots, and other property, including the site where the building, property, structure, or equipment is located.

Title II’s prohibition of discrimination in facility access is patterned after Title II’s general discrimination provision. Facilities may be “programs, services, or activities” within the meaning of the statute (including the voting process, People First of Alabama v. Secretary of State for Alabama, 2020, discussed below) or conduits such as websites (under Title III, for example, Access Living of Metropolitan Chicago v. Uber Technologies, 2020, also discussed below), or other “programs, services, or activities” public entities offer. What a public entity must do to ensure “program access” varies according to whether the facility is an “existing” facility, a new facility, or a facility that has been altered (Blanck, 2020b).

In Hamer v. City of Trinidad (2019), the Tenth Circuit found the plain language of Title II’s services, programs, and activities includes city sidewalks. A public entity violates Title II when it constructs, creates, or maintains noncompliant sidewalks—a service, program, or activity that must be readily accessible to individuals with disabilities, such as those who use wheelchairs. In Hamer, the plaintiff was excluded from, or denied participation in, the benefits of the city sidewalks each day she was deterred from using them due to the city’s noncompliance. The daily injury would cease when the city remedied its noncompliance or when the plaintiff no longer showed an intent to access the services. The United States Supreme Court (Trinidad v. Hamer, 2019) did not disturb the lower court’s ruling.

In National Association of the Deaf v. Florida (2020), the Eleventh Circuit likewise concluded that a Florida resident may properly bring suit under Title II against the State of Florida for not providing captioning for live and archived videos of Florida legislative proceedings. At stake was plaintiff’s right to access information about governmental processes. Title II was enacted to protect people with disabilities’ right to participate in society and its civic activities, even where a “fundamental” constitutional right, such as access to the democratic process, is not at stake (National Association of the Deaf v. Florida, 2020).

Also in 2020, in People First of Alabama v. Secretary of State for Alabama (2020), the district court, as affirmed by the appellate court, had denied a request by the Alabama Secretary of State for a stay of a preliminary injunction enjoining the state from enforcing Alabama voting restrictions against individuals with disabilities who were at risk of becoming seriously ill or dying if they contracted COVID-19. Because of the increased health risk of voting at polling stations, Alabama had made emergency alterations to election and voting protocols, such as allowing Alabamian voters to vote absentee. But Alabamian voters still had to comply with existing rules for casting absentee ballots. Individuals who wanted to vote absentee had to submit a copy of their photo identification with their absentee ballot application. The absentee ballot also would not be counted unless it was returned with an affidavit signed by a notary public or two adult witnesses. As people with disabilities faced a higher risk of contracting COVID-19, the absentee voter restrictions essentially required them to give up social distancing and self-isolation to vote.

The district and appellate courts had held that the pandemic-mandated election restrictions violated Title II. The plaintiffs were “qualified individuals” for purposes of voting. The photo ID requirement effectively excluded many of them from voting participation solely by reason of their disability. In contradiction of Title II, the Alabama voting requirements forced voters with disabilities to choose between encountering immediate and severe potential health risks, and forsaking their fundamental right to vote (People First of Alabama v. Secretary of State for Alabama, 2020, concurring opinion). The plaintiffs had proposed curbside voting as a “readily available” modification to the voting requirements, which they alleged would not would fundamentally alter the election process.

Several weeks after the appellate court’s decision, in an unsigned order delivered by Associate Justice Thomas, on July 2, 2020, the Supreme Court granted the state’s application for a stay of the district and appellate courts’ orders pending further appeal (Merrill v. People First of Alabama, 2020). The stay was granted in the absence of oral argument or an opinion in support. Further proceedings will determine whether this stay served to disenfranchise persons with disabilities in Alabama on the basis of their disabilities, in contradiction of Title II. In an order issued by the U.S. Supreme Court on July 16, 2020, in a similar voting rights case in Florida, Justice Sotomayor dissented, stating that the Court’s order prevented thousands of eligible voters from participating in Florida’s election “simply because they are poor” (Raysor v. DeSantis, 2020).

Title II Effective Communication Mandate

Title II’s definition of qualified person with a disability links the “provision of auxiliary aids and services” to the concept of reasonable accommodations. The Title II regulations have a separate section devoted to “Communication,” which makes clear that communication is an integral part of a public entity’s responsibilities under Title II (Blanck, 2020b).

Title II’s communication regulations and the case law interpreting them stand for the proposition that a public entity must offer effective communication alternatives. A public entity must take steps to ensure that communications with applicants, participants, and members of the public with disabilities are as effective as communications with others without disabilities. Most cases involve the question of exactly how effective a communication alternative has to be, for example, how effectively the assistance of a “qualified interpreter” in a health care setting may enable communication with a Deaf person.

The Title II regulations require that auxiliary aids and services be furnished when necessary to afford an individual with a disability an equal opportunity to participate in and enjoy the programs, services, or activities of the public entity. The effective communication obligation is owed to people with hearing, speech, vision, and print disabilities. In terms of types of auxiliary aids and services, a public entity must afford primary consideration to the requests of individuals with disabilities.

Auxiliary aids and services for people with hearing impairments include qualified interpreters, note takers, written materials, amplifiers, captioning, and TTYs (text telephone relays). For people with vision and print impairments, they include qualified readers, taped text, Braille, large print, and assistance locating items. For people with speech disabilities, they include TDDs (teletypewriters), computer terminals, speech synthesizers, and communication boards. A public entity need not take an action that would result in a fundamental alteration to its facility or an undue financial and administrative burden.

In Silva v. Baptist Health South Florida (2017, 2020), plaintiffs who were deaf made repeat visits to defendants’ hospitals, which were private entities covered by Title III. Plaintiffs alleged they were not able to communicate effectively with staff because of the lack of auxiliary aids or services, which resulted in discrimination against them based on their disabilities. However, at the appellate level, the court held that plaintiffs could not continue to pursue injunctive relief because, given there had been a change in hospital policy, even if they were to return to the hospital, they would not likely experience a denial of benefits or discrimination; that is, they no longer had legal standing.

Overall, to bring an effective communication claim under Title III (and under Title II involving state and local government-run health care providers and hospitals), plaintiffs are not required to show deficient treatment or recount their lack of understanding during interactions with hospital staff. The test instead is whether plaintiffs have an equal opportunity to benefit from the hospitals’ services (Silva v. Baptist Health South Florida, 2017, 2020).

Title II Transportation Provisions

A separate part of Title II covers nondiscrimination in transportation provided by public entities. Transportation was an area for which the ADA’s framers recognized an existing pattern of discrimination and inequity. The law’s framers viewed transportation as crucial in unlocking access to other opportunities that the ADA would help create.

Public transportation is especially important to people with disabilities because evidence suggests they are more reliant on public transportation than others in the general population (Blanck, 2020b). The legal and policy tensions specific to transportation issues are, essentially, a microcosm of the entire Act. These tensions include the question of whether people with disabilities are best served by adjusting mainstream transportation services to facilitate use or by creating services specialized for them.

Thus, in the transportation context, the issues typically involve whether to mainstream existing transportation to accommodate people with disabilities or rely instead on paratransit. Paratransit refers to transportation services usually provided by vans operating separately from regular mass transit operations and that are distinct from privately operated on-demand transportation services (as discussed next in the context of Title III). Also considered is whether there should be a “threshold” or “necessary” level of governmental spending on mass transportation options for people with disabilities.

In Guerra v. West Los Angeles College (2020, 2021), the plaintiffs were students with physical disabilities who attended West Los Angeles College. They sued the college under Title II, alleging that the termination of the on-campus shuttle service restricted their access to the college’s programs and services. On appeal, the court concluded that Title II required a public entity such as the college to provide individuals with disabilities “meaningful access” to its programs and services viewed in their entirety. Plaintiffs were denied meaningful access to the college’s programs and services once the shuttle service ended. Their access could not be reasonably and readily achieved by requiring the students take the Los Angeles paratransit service from their homes to the college and then having them travel the campus on motorized scooters or by foot.

“Places” of Public Accommodation Under Title III

Title III covers “places of public accommodation” and “commercial facilities.” Public accommodations consist of 12 specified categories of business that affect commerce, such as places of lodging; establishments serving food or drink; theaters, concert halls, stadiums, and convention centers; sales or rental establishments; professional offices; museums and places of public displays; places of exercise or recreation; places of education; and social service centers (Blanck, 2020b).

The general categories are exhaustive for purposes of Title III. If a business does not clearly fit into one of the categories, it is not a place of public accommodation. Places that do not fall within the categories generally are considered “commercial facilities.” Public accommodations are subject to the nondiscrimination obligations of Title III, whereas commercial facilities are subject only to the requirements for new construction and alterations. However, a single facility may contain both public accommodations and commercial facilities. For example, stores within a private airport are public accommodations, although the airport itself is a commercial facility.

Title III does not cover residential facilities. However, areas of private homes used as places of public accommodation are covered under Title III. For instance, a home that houses a daycare facility or a physician’s office will be covered under Title III, at least in those areas used for public accommodation or public activities. However, private homes that rent out rooms on a short-term basis, such as through online marketplaces and on-demand services, generally are not covered by Title III.

Discrimination Under Title III

The types of discrimination under Title III include inequitable eligibility criteria; failure to make reasonable modifications of policy, practice, or procedure when necessary to permit a person with a disability to benefit from a place of public accommodation; failure to ensure effective communication through provision of auxiliary aids; and failure to remove architectural barriers to access when it is readily achievable to do so (Blanck, 2020b). A place of public accommodation may not assess a surcharge to a person with a disability to cover the costs of measures—such as the provision of auxiliary aids, barrier removal, or reasonable modifications—needed to provide that individual or group with the nondiscriminatory treatment required by Title III. Instead, the cost of compliance must be considered an overhead expense.

In Pletcher v. Giant Eagle (2020), a supermarket had a COVID-19 policy that customers must wear a mask or full-face shields to enter the store. The plaintiff alleged that this policy was a violation of Title III against her as a person with a disability; she had a condition, asthma, that substantially affected her major life activity of breathing and respiratory system. Due to her condition, she could not wear a mask over her mouth and nose without significant difficulty in breathing. Giant Eagle provided that its customers who cannot wear a mask or full-face shields because of a disability would have the option of having an employee shop for them or using curbside pickup and delivery services.

The court held that plaintiff’s disability did not prevent her from complying with Giant Eagle’s face-covering policy that permits customers to shop inside its stores wearing either masks or full-face shields. The court further found that the plaintiff did not show that the requested accommodation of being permitted to shop in the Giant Eagle without a mask or face shield was reasonable or necessary. Finally, the court acknowledged Giant Eagle’s defenses that its face-covering policy arguably was a legitimate safety requirement during the COVID-19 pandemic and that, without a mask or face shield, plaintiff presented a direct threat to the health and safety of others, including customers and employees.

Many disputes of the sort in Pletcher v. Giant Eagle currently raise issues under Title III that implicate nondiscriminatory access to public accommodations, reasonable modifications in policies, and direct threat to the health and safety of self and others. In particular, these questions go to the interpretation and scope of the COVID-19 recommendations from the U.S. Centers for Disease Control and Prevention (“CDC”; Williamson et al., 2020). The CDC recommends wearing a face mask in public places like grocery stores, and many states and local governments are requiring the use of a face mask when in public spaces.

The face mask mandates may impact not only individuals with asthma and chronic obstructive pulmonary disease (“COPD”) but also people with post-traumatic stress disorder (“PTSD”), severe anxiety, claustrophobia, or other mental health conditions. Others affected may include people with autism who are sensitive to touch and texture; a person who has cerebral palsy and may have difficulty moving the small muscles in the hands, wrists, or fingers; and a person who uses mouth control devices such as a sip and puff to operate a wheelchair, assistive technology, or assistive ventilators (Williamson et al., 2020).

The Pletcher COVID-19 mask case highlights the interplay of alleged discrimination under Title III and questions of reasonableness, avoidance of “fundamental alterations” in a public accommodation’s programs or policies, avoidance of “direct threats” to safety and health, and determining whether a proposed modification is “readily achievable.” In deciding whether a requested modification is reasonable, poses a direct threat, or fundamentally alters the services or accommodations—in Pletcher, the question was whether Giant Eagle’s policy of providing its customers who cannot wear a face mask because of a disability the option of having an employee shop for them or to use curbside pickup and delivery services is reasonable—the needs of a person with a disability must be evaluated on an individualized basis.

Presumably, therefore, a mask accommodation that is proper for one person may not be necessary for another. In 2021, Nike settled class action litigation brought by Plaintiff Cali Bunn, a college student who is deaf, that addressed an important pandemic-related mask issue that potentially affected millions of Californians who are deaf or hard of hearing. In Bunn et al. v. Nike (2021), in response to the pandemic, Nike stores instituted a policy requiring its employees to wear face masks when interacting with customers. Although the plaintiffs agreed that face masks are necessary to protect public health, they alleged that Nike’s policy discriminated against people who are deaf or hard of hearing in violation of the ADA. This is because Nike permits its employees to wear opaque face masks while interacting with customers, which muffle sound and block visualization of the wearer’s mouth and facial expressions necessary for people with hearing loss to understand speech.

In settling the case, Nike agreed to provide guidance and communications to its California store employees to accommodate customers with difficulty communicating due to an employee wearing an opaque face mask. Nike will post notices at store entrances that accommodations are available for customers with hearing loss and provide its store employees with transparent face masks and clean pen-and-paper sets when a customer requests an accommodation.

As a practical matter, if it is determined a particular modification does not constitute a fundamental alteration, as in Nike, it would seem difficult to deny the benefit of that finding to others with a range of similar impairments. Others with similar impairments should be able to take advantage of the policy change or reasonable modification (discussed next), absent a showing that the alteration is not appropriate or necessary for them.

“Reasonable Modifications” Under Title III

Title III provides that discrimination includes the failure to make “reasonable modifications” in policies, practices, or procedures when necessary for individuals with disabilities, unless such modifications “fundamentally alter” the nature of such goods, services, and accommodations. A reasonable modification, similar to the reasonable accommodation concept in Title I, may be a change in the way a good or service is provided. For example, allowing service dogs generally is a reasonable modification for places of public accommodations.

In litigation addressing the reasonable modification question, a plaintiff must first introduce evidence that a modification is generally reasonable. The covered entity then may introduce evidence that the modification would constitute an undue hardship. The language in Title I and Title III is similar in this regard. Title III defines discrimination to include a failure to make reasonable modifications unless the entity demonstrates that making such modifications fundamentally alters the nature of the public accommodation.

In the case PGA Tour v. Martin (2001), the Supreme Court held that Title III protects access to professional golf tournaments by a qualified entrant with a disability. The Court held that the contestant could not be denied use of a golf cart on the grounds it would “fundamentally alter the nature” of the tournament when other contestants must walk. The use of carts as a program modification was reasonable. The Martin Court underscored that the ADA requires individualized attention to accommodation requests that allow equal access by the public.

Service Animals as Reasonable Modifications/Accommodations Under Title III (and Title II)

Service animals present issues not encountered with other personal assistance mechanisms for individuals with disabilities. Generally, a public accommodation must modify policies, practices, and procedures to permit the use of a service animal by an individual with a disability (Blanck, 2020b). In rare circumstances, accommodation may not be required because a fundamental alteration in the nature of the services or the safe operations of the public accommodation may result.

Under the ADAAA, a service animal is defined as a dog trained to do work or perform tasks for the benefit of an individual with a disability, including a physical (e.g., cerebral palsy, epilepsy), sensory (e.g., visual, hearing), psychiatric (e.g., clinical depression, PTSD), and intellectual (e.g., Down syndrome) disability. Other species of animals, trained or untrained, are not service animals for the purposes of this definition. Also, work performed by a service animal must be related to the individual’s disability, and care and supervision of a service animal are the responsibility of the individual with the disability. The public accommodation facility may only “ask if the animal is required because of a disability and what work or task the animal has been trained to perform” and it may not require a surcharge for admitting the service animal.

Some courts have held that a proposed accommodation by an individual with a disability for the use of a service animal is reasonable under the ADA as a matter of law (Berardelli v. Allied Services Institute of Rehabilitation Medicine, 2018). So entities covered by the ADA ordinarily must accommodate the use of service animals by individuals with disabilities, and the reasonableness of the accommodation must be decided on a case-by-case basis. Thus, an accommodation of a blind person’s request to be accompanied by her service animal—absent exceptional circumstances—is per se reasonable under Title III.

But there are limits. In Mayle v. City of Chicago (2020), the court upheld the city’s decision that a plaintiff with bipolar disorder could not bring his emotional support hog into public places such as public beaches and parks: The ADA requires public entities to allow “service animals” such as dogs, but not hogs, to accompany people with disabilities. The plaintiff had trained the hog to respond to his anxiety attacks and alleviate his depression by providing him with massage therapy, and to encourage him to engage in physical activity, which helped mitigate his mental health conditions.

Plaintiff argued that ADA Title II prohibits public entities from excluding, denying benefits to, or discriminating against someone because of that person’s disability. But this rule is limited in that Title II also requires public entities to make only reasonable modifications to their policies, practices, and procedures to avoid discrimination on the basis of disability. Generally, this means permitting people with disabilities to use a service animal, defined as a dog. A miniature horse, pig, and other species of animals, whether trained or untrained, are not service animals for the purposes of the ADA.

In 2020, the U.S. Department of Transportation (“DOT”), issued a final rule regarding “Traveling by Air with Service Animals,” which became effective in 2021. This DOT rule

defines a service animal as a dog, regardless of breed or type, that is individually trained to do work or perform tasks for the benefit of a qualified individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.

Among other regulations, the DOT rule allows airlines to classify emotional support animals as pets that are not service animals. Airlines may limit to two the number of service animals that one passenger can bring onboard an aircraft. Airlines may require passengers with a disability traveling with a service animal to submit a standard form in which they attest to the animal’s training and good behavior and certify its good health (U.S. DOT, 2020).

In 2021, in a decision of first impression by the U.S. Court of Appeals for the Ninth Circuit, the court held that entities covered by the ADA may not impose a certification requirement for a psychiatric service dog to be qualified as a service animal under the law (C.L. v. Del Amo Hospital, 2021). Plaintiff C.L., diagnosed with post-traumatic stress disorder and other mental health conditions, had obtained a dog named Aspen intending it to be her service animal.

C.L. self-trained Aspen to conduct specific tasks to mitigate her disabling mental health conditions. These tasks enabled C.L. to spend more time engaged in daily life activities and included waking from nightmares, grounding with deep pressure, alerting for people approaching, interrupting self-injurious behavior, cornering alert if someone is approaching, boundary control with Aspen between C.L. and other people, alerting for medication, and standing guard by the shower. Training courses to provide Aspen with formal certification as a service animal were not a viable option financially.

C.L. sought voluntary inpatient treatment at Del Amo Hospital, a private hospital with programs that specialize in treatment of patients like C.L. who have experienced psychological and physical trauma. Del Amo denied C.L.’s request to bring Aspen with her because its clinicians believed that Aspen’s presence “would interfere with C.L.’s therapy by allowing her to rely on Aspen rather than learn coping skills” (C.L. v. Del Amo Hospital, 2021, at 4).

After a bench trial, the district court found that C.L. was a person with a disability under the ADA and Del Amo a place of public accommodation under ADA Title III. However, the district court ruled in favor of Del Amo that C.L. had not shown Aspen was or is a service dog for purposes of the ADA. The Ninth Circuit reversed, holding the ADA prohibits certification requirements for qualifying service dogs. The court of appeals found that the ADA defines a service dog functionally, without reference to specific training requirements, and that the U.S. Department of Justice ADA regulations have rejected such a formal certification requirement. Moreover, the Ninth Circuit found that “allowing a person with a disability to self-train a service animal furthers the stated goals of the ADA, for other training could be prohibitively expensive” (C.L. v. Del Amo Hospital, 2021, at 7). The court of appeals noted that, increasingly, research and practice show that a certification requirement for service animals would serve to harm the quality of life, and independence, of persons with psychiatric disabilities, such as those with PTSD, in contradiction of the ADA.

Although the Ninth Circuit held that the ADA (across all the law’s titles) does not impose a certification requirement for service animals, it remanded the case to the district court to determine whether the trial testimony—of C.L. on her self-training of Aspen and expert testimony about the training of service animals and of Aspen—is sufficient to show Aspen was a qualified service dog at the time of trial. Should the court find that Aspen was a qualified service animal, the court must then determine whether Aspen accompanying C.L. at Del Amo “fundamentally alters” the inpatient psychiatric services offered to C.L. during the hospitalization. As mentioned, an entity covered by the ADA is not required to take measures that effect a fundamental alteration in the service. The medical experts who testified at trial for plaintiff and defendant were split on this issue.

In another setting, in 2021, an arbitrator found Uber liable as a transportation provider covered by ADA Title III for its drivers’ misconduct for refusing 14 times to provide appropriate, nondiscriminatory, and safe transportation to the plaintiff, who was legally blind, because of her accompanying service dog (Irving v. Uber Technologies, 2021; see below discussion of Rideshare companies as “places” of public accommodation under Title III). Uber was found to be a transportation service under the ADA and subject to Title III as a result of its contractual relationship with its drivers to provide transportation.

Title III Requirements to Overcome Architectural Barriers

Unlike drafters of previous civil rights laws, the ADA’s drafters had to contend with the fact that prejudice was not only a part of society generally but also had been built into the physical environment. Many existing buildings and facilities of various kinds had been designed and constructed with no thought about whether people with disabilities could access or use them (Blanck & Rotella, 2017; Global Universal Design Commission, 2021). And retrofitting existing buildings would be, for many, a significant expense. Ultimately, the drafters reached a compromise that provided a gradual approach to facility accessibility.

Title III thus requires elements in existing facilities to be modified to the extent readily achievable, defined as “easily accomplishable and able to be carried out without much difficulty or expense” (Blanck, 2020b). The “readily achievable” standard considers, among other factors, the nature and cost of barrier removal; the overall financial resources of, and number of persons employed by, the concern in question; the effect on expenses and resources and legitimate safety requirements; and the financial resources and type of operation of a parent entity.

There are additional limits on the readily achievable standard. Even if it is readily achievable to do so, entities are not required to remove barriers if doing so would exceed the requirements for alterations or new construction. A covered entity does not have to rearrange movable features if doing so would result in “a significant loss of selling or serving space.”

In deciding which barriers to remove, a public accommodation must prioritize the significance of the barrier when the person with a disability attempts to access the goods and services. The first priority includes access to, and into, the facility. Elements addressed under this priority include parking, entrances, and curbs, among others. The second priority includes access to the goods and services of the public accommodation. Elements addressed here include aisles, shelves, signage, doorways, and so on. The third priority includes restroom access and involves elements such as toilet stalls, dispensers, grab bars, and mirrors. The final priority includes other barriers to access the goods and services of the public accommodation. Buildings constructed after the ADA was passed must be fully accessible in accordance with the applicable architectural standards.

Websites as “Places” of Public Accommodation Under Title III

The rise of the Disability Rights Model, described earlier, bolstered by the passage of the ADA, coincided with technological advances that began to enhance inclusion and equal participation in society for persons with disabilities. Fundamental to the wave of technological advances has been the development of the internet’s World Wide Web and its use across the world. The internet offers increased connectivity between persons with disabilities and their employers and community and it is making products and services available to people with disabilities who previously excluded could not get them because of inaccessible facilities and materials (Blanck, 2014). This connectivity is a paramount need for persons with disabilities, and to an even greater degree for those who now may be further isolated due to the COVID-19 pandemic (Fiallo v. Curv Group, 2020).

As they have developed to provide access to the internet, computers, then mobile devices, and, now, smart assistive technologies have come to play a central role in the lives of individuals with disabilities. Mobile real-time applications help compensate for the physical and mental limitations inherent in some disabilities—individuals without finger dexterity use voice-recognition software to run a computer, and individuals with speech impediments or with intellectual and developmental disabilities use software applications to connect with others. Video over internet protocol (VoIP) allows deaf individuals to communicate in real time using American Sign Language, and texting and instant messaging facilitate communication by individuals with sensory impairments.

The internet has transformed the nature of access to information. Full and equal societal participation increasingly depends on the ability to use the internet. However, and ironically, many of the accompanying technologies have created new types of barriers to social participation for people with disabilities. Equal access to the internet by persons with disabilities therefore remains a prominent topic of discussion under the ADA.

Thirty years ago, the drafters of the ADA could not have anticipated the significance of the internet to persons with disabilities. But as use of the internet has become pervasive, complex issues of internet accessibility for persons with disabilities have emerged for all of the ADA’s titles: for the public accommodations language of Title III, for state and local governmental activities covered by Title II, and for Title I’s employment provisions. The U.S. Courts of Appeals currently have a split of opinion as to whether Title III covers only physical “places” of public accommodation. Some circuits have held that public accommodations are limited to physical places; others have held to the contrary.

In Robles v. Domino’s Pizza (2019), the Ninth Circuit considered whether Domino’s Pizza stores had failed to design, construct, maintain, and operate its website and mobile application to be fully accessible to people who are blind and need to use screen-reading software to vocalize visual information on websites. Domino’s operated a website and online mobile application (“app”) for customers to order pizzas and products for at-home delivery and in-store pickup and to receive coupons and discounts. The plaintiff contended the website and app were not accessible to him.

The Ninth Circuit held that Title III did apply to Domino’s website and app, although the plaintiff predominantly did not access the services at the physical restaurant. Under Title III, places of public accommodation must provide auxiliary aids and services to make visual materials accessible to blind customers. Furthermore, it applies to services of a place of public accommodation and not only to services in a place of public accommodation. The court held that Domino’s had received fair notice that its website and app must comply with Title III. For instance, Title III requires “effective communication” with customers with disabilities to facilitate full and equal enjoyment of its goods and services. The United States Supreme Court decided not to disturb the lower court’s decision.

In February of 2020, essentially at the beginning of the pandemic, a group of U.S. disability advocates—individuals who are deaf and hard of hearing, along with the National Association of the Deaf (“NAD”; Disability Rights and Education Defense Fund, 2019)—settled a Title III lawsuit against Harvard University and the Massachusetts Institute of Technology (“MIT”) brought 5 years earlier in a federal district court in Massachusetts. The plaintiffs had alleged that most of these universities’ online resources, including Massive Open Online Courses (“MOOCs”), were not captioned and that the few captions offered were often unintelligible, making the information either not accessible or incomprehensible. Plaintiffs identified captioning as a reasonable accommodation to afford them meaningful access to the services offered to the public. Before the settlement, the court had already held that plaintiffs’ allegations were sufficient to state a cognizable claim under ADA Title III, and the case had survived two motions by defendants to dismiss it.

Under the landmark NAD agreement, the universities are to institute web accessibility guidelines to ensure their websites and online materials are accessible to people who are deaf and hard of hearing. The agreement provides for captioning for publicly available online content, such as video and audio content posted internally by the universities and such content posted externally (as on YouTube). It also required that the universities increase access to their MOOCs for use by deaf and hard of hearing people.

The “start” of the pandemic in February 2020 thus brought many “new norms,” including the shift to online learning: Not just Harvard and MIT, but most universities, began plans to transition to online remote learning for their students. Issues immediately arose as to accessibility, usability, and equity in online learning for students with disabilities. Such issues have included adequate remote access to the internet, accessible learning and course materials and tools, the need to train teachers and students about online learning, and affordability and tuition equity in the use of online learning and hybrid on-site learning, among others.

Despite the settlement of the NAD case, at the time of this writing, there are still cases percolating in the courts addressing alleged Title III discrimination on the basis of disability in the provision of web-based and online learning programs by a private (or public under Title II) university. In June 2020, in an ongoing case, Fernandez and NFB v. Duke University (2020), the plaintiff, who is blind, was a graduate student at Duke enrolled to pursue a Master of Business Administration. She alleged that Duke violated ADA Title III in denying her equal access to course materials and educational technology; specifically, that Duke had failed to provide her timely and effective access to course materials, handouts, assignments, PowerPoint presentations, class notes, tactile graphics, and accessible course registration and employer recruiting software.

In a recent decision of potential widespread import, the Eleventh Circuit in Gil v. Winn-Dixie (2021) held the language in Title III defining a “public accommodation”—listing 12 types of locations as public accommodations, all tangible types of locations at physical places—does not include “intangible” places or spaces such as websites. In other words, Title III public accommodations are limited to physical places. Accordingly, because websites are not a place of public accommodation under Title III, plaintiff Gil’s inability to access and communicate with the website due to his blindness was not a violation of the ADA.

In Gil, the plaintiff did not take the position that websites necessarily are places of public accommodation under Title III, relying instead on the argument that Title III also prohibits “intangible barriers” that may prevent an individual with a disability from equal enjoyment of the services of a place of public accommodation. In the case, Winne-Dixie provided only a limited use website on which no sales were possible. Although individuals with visual disabilities such as Gil could not fully access it, the Eleventh Circuit found the limited service website presented not enough of an intangible barrier to Gil’s full enjoyment of the services offered at Winn-Dixie’s physical stores, that is, at its “operative place of public accommodation.” Therefore, the court held that Winn-Dixie’s website was not a substantial “intangible barrier” to Gil’s ability to access and enjoy fully the goods and services offered at this particular place of public accommodation.

The dissenting opinion argued that because Gil was not able to equally access the services on the website, he was treated differently than other, sighted customers. In the ADA’s terms, Gil, although a person with a vision disability, was not provided an “auxiliary aid” as required by Title III to ensure his “effective communication” with a place of public accommodation—the website. The majority decision, in contrast, treated the website as not being a place of public accommodation. Therefore, Gil’s “mere inability to communicate with and access the services available on the website does not mean that Winn-Dixie necessarily is in violation of [Title III]” (Gil v. Winn-Dixie, 2021, at *9). According to the Gil majority, for there to be a Title III violation, the inaccessible website must be an “intangible barrier” to Gil’s equal ability to enjoy the services at Winn-Dixie’s physical stores, which included filling his prescriptions and taking advantage of shopping coupons.

The Eleventh Circuit in Gil also declined to adopt a “nexus” standard, which other circuits such as the Ninth Circuit (e.g., in Robles v. Domino’s Pizza, 2019, discussed above) have adopted in similar website cases. (By comparison, the First Circuit has held the term “public accommodation” under the ADA is not necessarily limited to actual physical structures with definite physical boundaries that a person enters to use the facilities or obtain services and, thereby, presumably there is no website nexus requirement under Title III; Carparts Distribution Center v. Automotive Wholesaler’s Ass’n of New England, 1994.) The Eleventh Circuit distinguished the facts of Robles because, while Domino’s made pizza sales via its website and app, Winn-Dixie did not make product sales on its website. In the Ninth Circuit then, where the plaintiff demonstrates a nexus between the website services and the physical place of public accommodation, the website services may be covered by Title III (Blanck, 2014, 2020b).

Given the current split of opinion among the U.S. Courts of Appeals, it is likely that the Supreme Court (and/or first the full, en banc, Eleventh Circuit) may be called upon to resolve the difference of opinion as to the ADA’s coverage of websites. Alternatively, as the majority opinion in Gil recognized, Congress may ultimately be called upon to clarify the scope of ADA Title III as it applies to the services of places of public accommodation and their websites that are part of today’s ubiquitous online marketplace. Associated administrative rules and interpretive guidance from the U.S. Department of Justice likely would also be necessary.

While the Eleventh Circuit noted almost in passing that it “recognize[d] that for many Americans like Gil, inaccessibility online can be a significant inconvenience” (Gil, at *12, emphasis added), full and equal access to the web for individuals increasingly is recognized by courts and others as a basic right under the ADA, as well as under other laws. This is because the web is intimately tied to the full and equal enjoyment of, and meaningful participation in, society for people with disabilities, particularly in the wake of the pandemic.

Future issues will arise under the ADA as to rights to access the web for people with disabilities in light of the dynamic nature of the internet, including its design and development, software and hardware infrastructures, and product life cycles—with all of this happening in complex interactions with increasing numbers of humans across a wide range of contexts. Activities at the forefront of these developments include those websites using Artificial Intelligence (“AI”) and geospatial location information sensors and systems designed to enhance equal participation in society (Blanck, 2014, 2020b; Harpur & Blanck, 2020, 2021). For now, the dissenting opinion in Gil lamented that

the majority opinion gives stores and restaurants license to provide websites and apps that are inaccessible to visually-impaired customers so long as those customers can access an inferior version of these public accommodations’ offerings. That result cannot be squared with the ADA. (Gil, at *25, dissent)

Rideshare Companies as “Places” of Public Accommodation Under Title III

In the midst of the pandemic, it also remains a contested question in courts across the United States whether an on-demand rideshare app may be considered a “place of public accommodation” for purposes of Title III. In Access Living of Metropolitan Chicago v. Uber Technologies (2020), a plaintiff who used a motorized wheelchair sued Uber, alleging Title III violations for not providing meaningful access to its ridesharing services. The court held that Uber was a “transportation provider” covered by Title III and that a public accommodation does not have to be a physical space. In accord with this ruling, in Equal Rights Center v. Uber Technologies (2021), the court found that plaintiff’s allegations as to how Uber connects its drivers with its app plausibly established that it is a public transportation service under Title III (see also Irving v. Uber Technologies, 2021).

The plaintiff in Access Living was able to advance her claim that Uber operates a place of public accommodation (in accord, Namisnak v. Uber Technologies, 2020; O’Hanlon v. Uber, 2021). But the Access Living court did not hold that Title III definitively applied to Uber. Whether plaintiff’s requested modifications to Uber’s practices were reasonable required a fact-specific inquiry in subsequent proceedings.

In Independent Living Resource Center San Francisco v. Lyft (2020), Lyft provided on-demand ridesharing transportation services in some regions of the country with an “Access” mode for riders to indicate their need for a wheelchair-accessible vehicle (“WAV”), but it did not offer this service in the San Francisco Bay area. Plaintiffs alleged that this resulted in more restrictive services in San Francisco, with longer wait times for WAV users. Because of this, Plaintiffs did not use Lyft.

The court held that Lyft, as a private entity primarily engaged in the business of transporting people and whose operations affect commerce, was covered as a public accommodation under Title III. As such, Lyft was required to make reasonable modifications to its WAV policies and practices, such as provision of driver incentives, advertising, partnerships, and rentals to comport with the policies and practices offered in other cities. Subsequent court proceedings are necessary, however, as to whether the proposed modifications are reasonable.

Given the ongoing nature of the pandemic, various and associated new health and safety (and individual privacy) issues are certain to arise as to the nature of reasonable modifications required by rideshare providers under Title III.