REASONABLE ACCOMMODATION / MODIFICATION UNDER THE ADA

 

There are three titles to the Americans with Disabilities Act (ADA).[1] Title I covers employment, Title II covers public entities, and Title III covers public accommodations. Reasonable accommodation applies to Title I and reasonable modification applies to Title II and Title III.

 

In Weinreich v. Los Angeles Metropolitan Transportation Authority,[2] the U.S. Court of Appeals for the Ninth Circuit held that:

 

Actually, the ADA language requiring “reasonable accommodation” appears in Title I of the ADA and applies only to employers. The language applicable to public services, benefits and programs is found in the regulations implementing Title II of the ADA. These regulations require “reasonable modifications” to public services and programs that discriminate on the basis of disability unless such modifications would fundamentally alter the nature of the service or program.[3] (emphasis in original).

 

Title I. Employment

 

In Johnson v. Gambrinus Company/Spoetzl Brewery,[4] the U.S. Court of Appeals for the Fifth held that:

 

Title I of the ADA provides that discrimination includes “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability . . . unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of the business. (citing 42 U.S.C. § 12112(b)(5)(A)).[5] (emphasis added).

 

The burden of proof of undue hardship is on the employer.[6]

 

29 C.F.R. Part 1630 is the Equal Employment Opportunity Commission (EEOC) regulations for Title I, and 29 C.F.R. § 1630.2 defines reasonable accommodation.

 

(o) Reasonable accommodation. (1) The term “reasonable accommodation” means:

(ii) Modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of the position. (emphasis added).

(iii) Modifications or adjustments that enable a covered entity’s employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities.

 

The E.E.O.C. interpreted the term “reasonable accommodation” in its 29 C.F.R. Part 1630, Appendix, and the E.E.O.C. stated:

 

The accommodations included on the list of reasonable accommodations are generally self explanatory. However, there are a few that require further explanation. One of these is the accommodation of making facilities used by employees readily accessible to, and usable by, individuals with disabilities. This accommodation includes both those areas that must be accessible to perform essential job functions, as well as non-work areas used by the employer’s employees for other purposes. For example, accessible break rooms, lunch rooms, training rooms, rest rooms, etc., may be required as reasonable accommodations.[7]

 

In U.S. Airways, Inc. v. Barnett,[8] the U.S. Supreme Court held that:

 

An ineffective “modification” or “adjustment” will not accommodate a disabled individual’s limitations.[9] (emphasis in original).

 

Citing U.S. Airways, Inc. v. Barnett in E.E.O.C. v. Sears, Roebuck & Co.,[10] the U.S. Court of Appeals for the Seventh Circuit held that:

 

At the very least, the employer is obliged to provide an accommodation that effectively accommodates the disabled employee’s limitations.[11]

 

Also, in E.E.O.C v. Sears, Roebuck & Co., the U.S. Court of Appeals for the Seventh Circuit held that:

 

The duty of reasonable accommodation is satisfied when the employer does what is necessary to enable the disabled worker to work in reasonable comfort.[12]

 

Furthermore, in Keever v. City of Middletown,[13] the U.S. Court of Appeals for the Sixth Circuit held that:

 

Under the ADA regulations, the employer has the ultimate discretion to choose between effective accommodations.[14]

 

Therefore, a “reasonable accommodation” must be effective and it must enable the disabled worker to work in reasonable comfort, and the employer can only choose between effective reasonable accommodations.

 

Title II. Public entities

 

28 C.F.R. Part 35 is the Department of Justice (DOJ) regulations for Title II, and 28 C.F.R. § 35.130(b)(7) is the regulation that defines “reasonable modification.”

 

 

28 C.F.R. § 35.130(b)(7).

 

A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.

 

Title III. Public accommodations

 

In PGA Tour, Inc. v. Martin,[15] the U.S. Supreme Court held that:

 

The phrase “public accommodation” is defined in terms of 12 extensive categories, which the legislative history indicates “should be construed liberally” to afford people with disabilities “equal access” to the wide variety of establishments available to the nondisabled.[16] (emphasis added).

 

28 C.F.R. Part 36 is the DOJ regulations for Title III, and 28 C.F.R. § 36.302 is the regulation that defines “reasonable modification.”

 

28 C.F.R. § 36.302

 

(a) General. A public accommodation shall make reasonable modifications in policies, practices, or procedures, when the modifications are necessary to afford goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the public accommodation can demonstrate that making the modifications would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations.

 

In PGA Tour, Inc. v. Martin, the U.S. Supreme Court held that:

 

Title III of the Act requires without exception that any “policies, practices, or procedures” of a public accommodation be reasonably modified for disabled “individuals” as necessary to afford access unless doing so would fundamentally alter what is offered. To comply with this command, an individualized inquiry must be made to determine if a specific modification for a particular person’s disability would be reasonable under the circumstances as well as necessary for that person, and yet at the same time not work a fundamental alteration. (public accommodations “are required to make decisions based on facts applicable to individuals”).[17] (citations omitted and emphasis added).

 

In conclusion

 

The above cited regulations and court decisions clearly establish that reasonable accommodations and reasonable modifications are to be determined on a case-by-case basis. Also, it is clearly established that the employer has the burden of proof that it would be an undue hardship to make the requested accommodations, and the public entity and the public accommodation have the burden of proof with regard to fundamental alteration.

 

Prepared by:

 

Billy Williams

Executive Director

GASP of Texas

http://www.gaspoftexas.com/

 

The statutes and regulations cited above can be accessed at http://www.law.cornell.edu/.

 

Additional information is available at: http://www.ada.gov/

and also from the Northeastern University School of Law at:

http://tobacco.neu.edu/tobacco_control/resources/ETS/adainfo1.htm.

 

DISCLAIMER: The content contained in this document has been prepared by GASP of Texas as a service to its readers. It is not intended to constitute legal advice. GASP of Texas has used reasonable efforts in collecting, preparing and providing quality information and commentary, but does not warrant or guarantee the accuracy, completeness, adequacy or currency of the information contained herein. Users of this information do so at their own risk.

 

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[1] 42 U.S.C. § 12101 et. seq.

[2] 114 F.3d 976 (9th Cir. 1997).

[3] 114 F.3d 978, n.1.

[4] 116 F.3d 1052 (5th Cir. 1997).

[5] 116 F.3d 1058.

[6] 116 F.3d 1058.

[7] 29 C.F.R. Part 1630.2(o), App., page 372-73 (7-1-06 Edition).

[8] 535 U.S. 391, 122 S.Ct. 1516 (2002).

[9] 535 U.S. 400.

[10] 417 F.3d 789 (7th Cir. 2005).

[11] 417 F.3d 802.

[12] 417 F.3d 803.

[13] 145 F.3d 809 (6th Cir. 1998).

[14] 145 F.3d 812 (citing 29 C.F.R. Part 1630, App., page 380 (7-1-06 Edition)).

[15] 532 U.S. 661, 121 S.Ct. 1879 (2001).

[16] 532 U.S. 676-77.

[17] 532 U.S. 688.

 

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