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Title III of the ADA
Provision of Auxiliary Aids
Title III of the Americans with Disabilities Act (ADA) gives rights
of equal access to places of public accommodation. For deaf and
hard of hearing people, Title III requires businesses and agencies
to remove many frustrating barriers to communication.
Title III covers a wide range of places of public accommodation,
including retail stores and the wide range of service businesses
such as hotels, theaters, restaurants, doctors' and lawyers' offices,
optometrists, dentists, banks, insurance agencies, museums, parks,
libraries, day care centers, recreational programs, social service
agencies and private schools. It covers both profit and non-profit
organizations. Unlike the employment section, which only applies
to employers with 15 or more employees, this part of the ADA applies
to all such offices and businesses, regardless of size.
Places of public accommodation must give persons with disabilities
equal opportunity to participate in and to benefit from their services.
They cannot provide unequal or separate benefits to persons with
disabilities. They must modify their policies and practices when
necessary to provide equal access to services and facilities.
In order to provide equal access, all public accommodations are
required to provide auxiliary aids and services to ensure effective
communication. The ADA also requires removal of structural communication
barriers that are in existing facilities, and installation of flashing
alarm systems, permanent signage, and adequate sound buffers.
The U.S. Department of Justice regulation to Title III of the ADA,
28 C.F.R. Part 36, and the Analysis that accompanies it, 56 Fed.
Reg. 35544 - 35691 (July 26, 1991), explain in detail the requirements
of the law. Public accommodations are required to provide auxiliary
aids to enable a person with disabilities to communicate effectively:
A public accommodation shall furnish appropriate auxiliary aids
and services where necessary to ensure effective communication with
individuals with disabilities.
28 C.F.R. Są36.303(c).
A comprehensive list of auxiliary aids and services required by
the ADA for deaf and hard of hearing people includes:
[q]ualified interpreters, notetakers, computer-aided transcription
services, written materials, telephone handset amplifiers, assistive
listening devices, assistive listening systems, telephones compatible
with hearing aids, closed caption decoders, open and closed captioning,
telecommunication devices for deaf persons [TTYs], videotext displays,
or other effective methods of making aurally delivered materials
available to individuals with hearing impairments.
28 C.F.R. 36.303(b)(1).
The term qualified interpreter is defined in the regulation to
mean:
. . . an interpreter who is able to interpret effectively, accurately
and impartially both receptively and expressively, using any necessary
specialized vocabulary.
28 C.F.R. 36.104.
The Analysis to this regulation makes it clear that Congress,
as well as the Department of Justice, "expects that public
accommodations will consult with the individual with a disability
before providing a particular auxiliary aid or service." 56
Fed.Reg. at 35567. The Department of Justice also states:
It is not difficult to imagine a wide range of communications involving
areas such as health, legal matters, and finances that would be
sufficiently lengthy or complex to require an interpreter for effective
communication.
56 Fed.Reg. At 35567.
The most important consideration is the type of service that will
be necessary to give "effective communication" to a deaf
individual. For example, in addition to providing an interpreter,
it may be necessary to change seating arrangements or lighting so
that there is a clear line of sight to the interpreter, and so that
the interpreter is clearly visible. Businesses may need to instruct
employees to accept TTY relay calls, even though such calls take
longer to complete than regular voice calls. Policies and practices
may have to be altered in order to provide access. A business that
normally would not permit a customer to bring in an animal must
give access to "hearing ear" and "seeing eye"
dogs.
A public accommodation may deny an auxiliary aid only if it can
demonstrate that providing the aid would fundamentally alter the
nature of the service, or would constitute an undue burden or expense.
If the public accommodation is able to demonstrate that there is
a fundamental alteration or an undue burden in the provision of
a particular auxiliary aid it must, however, be prepared to provide
an alternative auxiliary aid, where one exists.
28 C.F.R. Są36.303(f).
Whether or not a particular auxiliary aid constitutes an "undue
burden" is difficult to decide. It depends on a variety of
factors, including the nature and cost of the auxiliary aid or service
and the overall financial and other resources of the business. The
undue burden standard is intended to be applied on a case-by-case
basis. Undue burden is not measured by the amount of income the
business is receiving from a deaf client, patient or customer. Instead,
undue burden is measured by the overall financial impact on the
whole entity. Therefore, it is possible for a business to be responsible
for providing auxiliary aids even if it does not make a sale or
receive income from a deaf customer, if the cost of the aid would
not be an undue burden on its overall operation.
The Department of Justice does not permit a public accommodation
to charge a person for the cost of the auxiliary aid provided. The
Title III regulation states:
A public accommodation may not impose a surcharge on a particular
individual with a disability . . . to cover the costs of measures,
such as the provision of auxiliary aids . . that are required to
provide that individual . . . with the nondiscriminatory treatment
required by the Act or this part.
28 C.F.R. 36.301(c).
The cost of interpreters and other auxiliary aids may entitle a
business to an income tax credit, as well as the usual business-related
expense deduction. Congress has amended the Internal Revenue Code
to provide business tax incentives for removing barriers or increasing
accessibility. The "Tax Deduction to Remove Architectural and
Transportation Barriers to People with Disabilities and Elderly
Individuals" (Title 26, I.R.C. Section 190) allows a deduction
for qualified barrier removal expenses not to exceed $1500 for any
taxable year. The "Disabled Access Tax Credit" (Title
26, I.R.C. Section 44) is available to eligible small businesses.
It provides a tax credit of 50 per cent of eligible access expenditures
that exceed $250 but do not exceed $10,250, made for the purpose
of complying with the ADA.
For more information on these tax provisions, contact the IRS:
Office of the Chief Counsel
PO Box 7604, Ben Franklin Station
Washington DC 20044
(202) 622-3110 (DC area) or 800-829-1040
(voice), 800-829-4059 (TTY).
This material was prepared by the National Association of the Deaf
Law Center. It is intended solely as informal guidance. This material
is not legal advice. For technical assistance and additional information
about how laws against discrimination apply to you, contact the
NAD Law Center, a local attorney, or an enforcement agency. |
