Making Sense of the Difference in ADA Requirements for Commercial Facilities and Public Accommodations

March 19, 2019

 

Title III of the ADA speaks to requirements for both "commercial facilities" and "public accommodations."  The "new construction" and "alterations" standards apply equally to both.  But the "readily achievable" standard only applies to "public accommodations."  "Commercial facilities" are privately owned, non residential facilities that affect commerce, such as factories or warehouses or even some office buildings, that are not subject to the "readily achievable" standard, because they do not fall in one of the following 12 categories that define a "public accommodation:"

 

1) Places of lodging (e.g. , inns, hotels, motels) (except for owner-occupied establishments renting fewer than six rooms);

 

 

2) Establishments serving food or drink (e.g. , restaurants and bars);

 

 

3) Places of exhibition or entertainment (e.g. , motion picture houses, theaters, concert halls, stadiums);

 

 

4) Places of public gathering (e.g. , auditoriums, convention centers, lecture halls);

 

 

5) Sales or rental establishments (e.g. , bakeries, grocery stores, hardware stores, shopping centers);

 

 

6) Service establishments (e.g. , laundromats, dry-cleaners, banks, barber shops, beauty shops, travel services, shoe repair services, funeral parlors, gas stations, offices of accountants or lawyers, pharmacies, insurance offices, professional offices of health care providers, hospitals);

 

 

7) Public transportation terminals, depots, or stations (not including facilities relating to air transportation);

 

 

8) Places of public display or collection (e.g. , museums, libraries, galleries);

 

 

9) Places of recreation (e.g. , parks, zoos, amusement parks);

 

 

10) Places of education (e.g. , nursery schools, elementary, secondary, undergraduate, or postgraduate private schools);

 

 

11) Social service center establishments (e.g. , day care centers, senior citizen centers, homeless shelters, food banks, adoption agencies); and

 

 

12) Places of exercise or recreation (e.g. , gymnasiums, health spas, bowling alleys, golf courses).

 

In short, while public accommodations are required to remove architectural barriers on an ongoing basis to the extent they can do so without much difficulty or expense, commercial facilities have no such obligation.  When newly constructed or altered, both must comply with ADA standards for accessibility.  However, only public accommodations have the ongoing obligation to remove barriers from existing facilities--commercial facilities that are not also public accommodations, do not.  Such existing commercial facilities may still be required to remove barriers as a reasonable accommodation to an employee with a disability pursuant to Title I of the ADA, but Title III places no ongoing obligation to comply with the "readily achievable" standard.  See relevant statutes and regulations below:

 

READILY ACHIEVABLE STANDARD:

 

"No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the good services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation."

 

42 U.S.C. § 12182(a)(emphasis added)

 

" For purposes of subsection (a), discrimination includes --

 

***

a failure to remove architectural barriers, and communication barriers that are structural in nature, in existing facilities … where such removal is readily achievable...."

 

42 U.S.C. § 12182(b)(iv)(emphasis added).

 

 

ALTERATIONS STANDARD:

 

"Any alteration to a place of public accommodation or a commercial facility, after January 26, 1992, shall be made so as to ensure that, to the maximum extent feasible, the altered portions of the facility are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs."

 

28 C.F.R. § 36.402(a)(1)(emphasis added).

 

NEW CONSTRUCTION STANDARD:

 

"[D]iscrimination … includes a failure to design and construct facilities for first occupancy after January 26, 1993, that are readily accessible to and usable by individuals with disabilities.

 

42 U.S.C. § 36.401(a).

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