Camps and Title III of the Americans With Disabilities Act

by Edward A. Schirick, C.P.C.U., C.I.C., C.R.M.

Laws and regulations create a variety of risks for camp directors to manage. The Americans With Disabilities Act (ADA) presents an interesting risk management challenge. The Act was passed in 1990 to give protection against discrimination to individuals with disabilities. ADA is similar to other national civil rights acts, which prohibited discrimination based upon race, sex, national origin, age, and religion. Recently, some camp professionals raised questions about camps and Title III of ADA as part of the risk identification step in the risk management process.

The ADA has several Titles, or Sections, which include standards for removing barriers for individuals with disabilities in employment, transportation, public accommodations, public services, and telecommunications. Title III of The Americans With Disabilities Act prohibits discrimination on the basis of disability by public accommodations and commercial facilities. The law requires that commercial facilities and places offering accommodations to the public be designed, constructed, and altered in compliance with the accessibility standards established by the Act.

Does Title III of The Americans With Disabilities Act Apply to Camps and Conference Centers?

Maybe. Help determining if your camp is subject to Title III of the ADA lies in the definition of Public Accommodations and Commercial Facilities.

The Act includes examples of entities covered by Title III including an inn, motel, hotel, or other place of lodging (emphasis added); a park, zoo, amusement park, or other place of recreation (emphasis added); a nursery, elementary, secondary, or private school, or other place of education (emphasis added); a day care center, or other social service establishment (emphasis added); a gym, health spa, golf course, or other place of exercise or recreation (emphasis added).

Camp businesses, which combine an entity named in the Act, such as private school and camp, or day care and camp, and camps leasing their facilities to groups for conferences and meetings, would appear to be included under Title III without question.

While the ADA does not specifically include camps and conference centers in their definition of Public Accommodations and Commercial Facilities, the omnibus language "or other" in the Act, seems to clear up any confusion. However, religious organizations are exempt from Title III requirements.

If Your Camp and Conference Center Meets the Definition of Title III, What Are Your Obligations?

The obligations are to remove barriers to the use of facilities and to provide auxiliary aids or services for participants with disabilities. These duties are equally the responsibility of the landlord and tenant. An interesting problem develops when a Title III exempt religious organization leases its facilities to a public entity, like a school or a private entity, such as a local business. Since the ADA makes compliance equally the duty of the landlord or tenant, religious organizations who don't comply with Title III may find their market for rental groups diminished. Many public schools and other organizations have operations guidelines, which prohibit leasing of facilities that are not accessible to persons with disabilities. So, even though not required to comply with Title III, religious organizations voluntarily complying may find themselves in an advantageous rental situation, if that is desirable.

Auxiliary aids and services are required by ADA to ensure effective communication — for example, pertaining to individuals with hearing or vision impairment, aids and services must include assistive-listening devices, large-print materials, and sign language interpreters. Other examples of safety equipment designed to remove barriers to the use of facilities include a strobe light fire alarm in a room occupied by a hearing-impaired person or a vibrating bed fire alarm in a room occupied by someone with vision impairment.

There is a limitation on these requirements, however. ADA does not require the removal of barriers or the provision of any auxiliary aid that would result in an undue burden or in a fundamental alteration in the nature of the goods or services provided by a public accommodation. Likewise, removal of "barriers" is only necessary when it is readily achievable. Readily achievable is defined in the Act to mean "easily accomplishable and able to be carried out without much difficulty or expense."

If your camp meets the criteria of public accommodation — or commercial facility under Title III — you would also be obliged to make all newly constructed facilities accessible to persons with disabilities. Likewise, all alterations to a facility that could affect the usability of the facility must be made accessible. However, if the cost of the additional alteration to enhance accessibility is more than 20 percent of the cost of the original alteration, they are not required. State and local building codes and local building inspectors are responsible for implementing these aspects of the Act.

It is illegal to deny participation in your camp program and access to your facilities to an individual with a disability covered by ADA. However, ADA does allow public accommodations to take safety factors into consideration when providing services to individuals with disabilities. The ADA permits exclusion of a person with a disability, who poses a direct threat to the health or safety of others. The threat must be based upon objective safety standards not capable of being reduced or managed easily by appropriate changes in your policies or procedures. ADA's standards specify that these modifications to procedures and policies be "easily accomplishable and able to be carried out without much difficulty or expense."

Can My Camp be Sued Over Actual or Alleged Violations of Title III of the ADA?

Yes. An individual with a disability can sue a business when that individual believes discrimination is about to occur. Private individuals may also bring lawsuits and obtain court orders to stop discrimination they believe is already taking place.

Individuals may also file complaints with the Attorney General who can bring suits of general public interest, or where a "pattern of discrimination" is alleged. In these instances, monetary damages and civil penalties may be imposed. Civil penalties may not exceed $50,000 for a first violation or $100,000 for a subsequent violation.

How Does My Camp Insurance Program Respond to an ADA Title III Suit?

The risk of financial loss (fines, attorney's fees, cost of reasonable modifications to accommodate individuals with disabilities, etc.) is probably not covered (transferred) by a typical camp insurance program.

General liability insurance responds to liability for bodily injury, damage to property of others, and personal and advertising injury liability (i.e., libel, slander, false arrest, unlawful imprisonment, invasion of the right of private occupancy, and certain infringement in advertising your camp's goods and services) and would not respond to an allegation of discrimination. Likewise, the available camp directors' professional liability endorsements are either not designed to respond to claims of discrimination, or specifically exclude liability arising out of the ADA.

Nonprofit directors' and officers' liability insurance, including employment practices liability, is designed to respond to wrongful acts and typically respond to some discriminatory acts in connection with employment. Unfortunately, because nonprofit directors' and officers' policies don't have standardized language, it is impossible to generalize about coverage for the ADA Title III violations. However, there is a pattern among directors' and officers' underwriters to exclude coverage.

Camp Obligations

Title III of The Americans With Disabilities Act presents certain risks to camps, which may not have been previously identified in your risk management plan. Camps appear to be subject to Title III requirements, although religiously affiliated camps are exempt. Under these circumstances, your camp has certain obligations to remove barriers to the use of your facilities and include persons with disabilities in your programs. There are some limitations on these requirements; among them is a threat to health and safety. Recognize, in addition, that the risk of financial loss from noncompliance with Title III of the ADA, includes expenses and civil penalties, which may not be adequately insured (transferred) by a typical camp insurance program.

Necessary Steps

Before next summer, take some time to consider whether your camp business qualifies as a Public Accommodation or Commercial Facility under the law. Depending upon your conclusions, take the necessary steps to avoid and reduce the risk of financial loss from non-compliance with the law.
If you want more information, the U.S. Department of Justice has considerable information about Title III of The Americans with Disabilities Act on the Internet through just about any search engine. An ADA Title III Compliance Checklist is also available from the Job Accommodation Network, 800-526-7234 (V/TTY), or online at www.jan.wvu.edu.

 

Urgent Insurance Issues

Editor's Note: Two concerns of significance related to insurance have come to our attention recently. As camp operators, you should be alert to these matters in your overall risk management planning and in review of policies concerning applications from campers who may require or request accommodation under the Americans With Disabilities Act. The first of these is highlighted in the accompanying article "Camps and Title III of the Americans with Disabilities Act." Camps are informed that the risk of financial loss (fines, attorney’s fees, cost of reasonable modifications to accommodate individuals with disabilities, etc.) is probably not covered (transferred) by a typical camp insurance program. Check with your agent concerning your coverage or lack of same.

Further, be aware of the need for prompt notification of your insurance company related to potential claims for any reason. See below.

Failure to Give Prompt Notice Voids Insurance Coverage
A nonprofit organization that failed to notify its insurance company of a potential claim on a timely basis thereby forfeited coverage under the insurance policy [Women’s Christian Alliance v. Executive Risk Indemnity, 2003 WL 21961434 (E.D. Pa.)].

The nonprofit organization in this case purchased a “Not-for-Profit Organization Directors, Officers, and Trustees Insurance Policy, Including Employment Practices Liability Coverage” from Executive Risk Indemnity. During the policy period, an employee was fired and later filed a discrimination complaint with the state’s human rights commission. The executive director of the nonprofit did not notify the insurance company at this time. Sever months later, the human rights commission issued a “right to sue” letter to the former employee, and she sued in federal court. Only then, sixteen months after the employee filed the original discrimination complaint, did the nonprofit notify the insurance company.

The insurance company declined to cover the claim, including legal fees and the $93,000 verdict that was ultimately issued against the non-profit organization. The court upheld the insurance company’s actions, finding that the policy in this instance — like all policies — required timely notice of any circumstance that could give rise to a claim. And even though the state’s human rights commission proceeding might not have been covered under the policy, still the insurance company should have been alerted since the initiation of that proceeding was a clear indication that litigation might follow.

Reprinted from Non-Profit Legal & Tax Letter®

Ed Schirick, C.P.C.U., C.I.C., C.R.M., is president of Schirick and Associates Insurance Brokers in Rock Hill, New York, where he specializes in providing risk management advice and in arranging insurance coverage for camps. Schirick is a chartered property casualty underwriter and a certified insurance counselor. He can be reached at 845-794-3113.
 

Originally published in the 2004 Winter issue of The CampLine.

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