On the 25th Anniversary of the enactment of the Americans with Disabilities Act (the ADA or the Act), we have been asked to refresh our latest article for The CampLine on this topic (“ADA Title III: Access to Recreation Programs for people With Disabilities,” January 2006.) In the intervening nine years, much has happened in this area of the law, including amendments to the Act and its regulations and a growing body of reported case law and administrative proceedings. First, we will summarize and update the main points of our 2006 article. We will then provide examples of case law and settlements reflecting current ADA discrimination claims and settlements and offer some key take-aways. Lastly, we offer a selection of resources for camps as they go forward in addressing these important issues.
We restrict our coverage of ADA Title III to access to programs and services, versus access to and design for “buildings and other structures.” Title III does cover this latter set of issues, and there have been important changes to those portions of the law as well. See, for example, a recent 2013 The CampLine article discussing these issues.
ADA Title I deals with access to employment requirements for “covered entities” and Title II with access requirements for “public entitles.”1 Our article does not address these sections of the Act. That being said, Title II addresses access to program issues for camps run by public entities (for example, a camp run at a city recreation center). Fortunately, the ADA Title III requirements we discuss in this article are similar under both titles. Also, keep in mind that a camp governed by Title III may be subject to Title II or other federal access law2 requirements if it is operating in conjunction with entities governed by those other laws.3
Another point important for camps to understand — an aggrieved individual claiming he or she has been discriminated against on the basis of a disability will likely be relying on both state and federal anti-discrimination laws. That is, most states have companion state anti-discrimination laws. These laws may provide equal or greater protections than the ADA, and camps should understand the compliance requirements (if different than federal law) for those laws as well.4
II. ADA Title III Compliance Requirements
Title III of the ADA requires that “no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, 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.”
Quite simply, qualifying organizations providing services may not discriminate against an individual with a disability — on the basis of that disability — as outlined in the Act.
Private entities are required to comply with the ADA if, among other criteria, they own, lease, lease to, or operate a place of public accommodation (PPA) that “affects commerce.” The Act (and accompanying regulations) defines a variety of PPAs. Under the regulations, a PPA is defined as a “facility” operated by a private entity, whose operations affect commerce, and fall within one of the categories listed. Qualifying PPAs include inns, hotels, zoos, parks, schools, gymnasiums, health spas and other places of exercise or recreation. Organizations that fall within a broad interpretation of these categories are subject to The Act.5
Most privately run camps will likely fall within these categories. However, note that Title III articulates the need for a “place” of public accommodation. If a camp is a tripping camp, for example, and does not have a facility or own, lease, or operate a physical “place,” does Title III apply? Cases have gone various directions on this qualifier, and it is worth careful study by your legal counsel if you believe your camp may not be required to comply.6 Title III also contains an exemption for, among other organizations, “religious organizations or organizations controlled by religious organizations,” and this exemption would extend to a qualifying camp. Affected camps should have their legal counsel study the scope of the exemption to determine its applicability, particularly considering state anti-discrimination laws that may not contain the exemption.7
Ultimately, camps that question Title III’s application to their organization on whatever basis may determine that it is practical, ethical and appropriate to comply with the spirit of the Act, despite an exemption or qualifier. Some state child care licensing laws (licensing required in some states for certain types of camps) require federal ADA compliance and ACA Standards for Accredited Camps requires appropriate compliance with The Act as well.8 Again, check with your legal counsel if you have any question about coverage.
The Act, as originally drawn in 1990 (and as it remains today) defines an individual with a disability as one who:
1) has a physical or mental impairment that substantially limits one or more major life activities (for example, caring for one’s self, walking, seeing, hearing, speaking, breathing, learning, concentrating, communicating); 2) has a record of such an impairment; or 3) is regarded as having such an impairment9. Such individuals would include, for example, those who are blind or deaf, have HIV, diabetes or cerebral palsy, suffer from a psychological or mental condition, or (as we will discuss below) suffer significantly from a digestive condition or food allergy. Federal regulations that accompany the law provide examples of what are and are not considered disabilities under the ADA.10 The list is not exclusive, primarily because the law is intended to be inclusive rather than restrictive.
Since our 2006 article, the Act underwent significant amendments in 2008 with subsequent amendments to its governing regulations in 2010. The expressed intent of these changes was to clarify the (intended) broad and liberal interpretation of the Act, strike down court (including U.S. Supreme Court) decisions that had issued rulings shrinking coverage of (or erroneously construing) the Act, and amending the Act to, in most cases, further expand its application.11 The goal was to bring more persons, more easily, under the Act’s protection.
The amendments also provide an expanded list of “major life activities” to include (among other additions) the operation of a “major bodily function” and identify that the determination of whether an impairment substantially limits a major life activity shall be made without regard to mitigating measures (other than eye glasses or contact lens). The amendments did tighten the Act in one relevant area, declaring that being only “regarded” as having a disability does not justify providing accommodation or modifications (for obvious reasons).12 Regulation expansion include that PPA’s shall appropriately permit individuals with disabilities to use service animals (a revised definition) and “other power-driven mobility devices.” (see regulations for specific language).13 These are only examples of the sweeping changes.
Under Title III, qualifying organizations are required to consider reasonable modifications to their “policies, practices and procedures” to provide access to those with disabilities, including by providing “auxiliary aides and services.”14 This can include, for example provision of interpreters or adaptive equipment for someone who is hearing impaired or allowance of other power-driven mobility devices. However, organizations are not required to provide personal devices or attendants (to address the individual’s personal needs).15 Importantly, an organization is entitled to limit modifications in light of legitimate safety requirements16 (ideally addressed in the organization’s essential eligibility criteria (EEC) — see below) or, in light of any other (legally) legitimate issues (also see below).
Organizations may ask program applicants questions about their ability to participate in the program. Questions about an applicant’s health or medical conditions (medical screening) allow the organization to understand and prepare for health issues or limitations and alert the camp to possible risk management issues for all campers.17 In addition, this screening is consistent with the organization’s effort to align with its own non-discriminatory safety/risk management focused EEC (if those exist), and with its need to determine whether or not it can implement modifications to allow access.
As mentioned above, an organization is permitted (not required) by Article III to develop essential eligibility criteria (EEC) for its activities.18 These are, generally, the cognitive (“thinking”, “processing”) and physical criteria the camp determines necessary for participation in a given activity, and are based largely on risk management considerations. EEC allow an applicant to identify suitability issues in the earliest stages of considering a program. EEC should be simple and straightforward and should apply equally to all applicants, regardless of a disability. EEC may range from the quite general “ability to understand and follow instructions” to the more specific “can detect signals of warning when in rockfall environments.” An organization’s EEC may be posted at its website, or in other readily accessible materials.19
EEC and medical screening inquiries will assist interested persons in deciding if participation is wise, or even possible, and if so, with what modifications. It also encourages dialogue and information exchange between applicants and the organization early on in the process. Developing these criteria and collecting health information is important not only in planning for those with disabilities. These strategies provide valuable information for all applicants.
Organizations are not allowed to impose EEC or other eligibility criteria that screen out, or tend to screen out an individual with a disability, unless such criteria are necessary for the provision of those services. An organization may impose legitimate safety requirements that are “necessary for safe operation,” which can logically be incorporated into any EEC. However, any safety criteria must be based upon “actual risks” and not on speculation, stereotypes, or assumptions about people with disabilities.20 Ultimately, an organization must allow people with disabilities access to programs in the most integrated setting “appropriate to the needs of the individual” (Title III law and regulations provide that separate programs may be appropriate in limited circumstances).21 Access (including proposed modifications) is not required, however, if it would, in appropriate circumstances:1) result in an undue financial or operational burden on the entity; 2) fundamentally alter the nature of the program or activity (for the individual and others); or 3) pose a “direct threat” to the safety of others attending the program. Regulations and case law reflect that these three limiting criteria involve a particularized inquiry, to avoid assumptions or generalizations.22
In summary, qualifying organizations, including camps, are required to allow people with disabilities integrated (that is, not separate, except in special circumstances) access to their programs — and make reasonable modifications to facilitate that access, as appropriate. An organization may be relieved of an obligation to accommodate a disability if that accommodation is “unreasonable” — in terms of cost, safety considerations, or an alteration of the fundamental nature of a program.
III. Alleged Discrimination — Legal Remedies
What are the legal remedies for an individual claiming he or she has been discriminated against in attempting to enroll or participate in a qualifying camp’s program?
First of all, the parties can — and hopefully will be — in an ongoing dialogue and information exchange about the issues, and can resolve those issues informally by either agreeing that access is appropriate with or without program modifications, or inappropriate.
However, if the parties are stuck, there are options available that DON’T involve running to the courthouse. The ADA encourages alternative dispute resolution between the parties with the goal of bringing the allegedly offending party into compliance, determining that no discrimination occurred, or other resolution. Importantly, the U.S. Department of Justice offers this opportunity at no charge to the parties.23 The goal, of course, is to provide opportunities for organizations to allow appropriate and lawful access to programs for those with disabilities — not to encourage lawsuits.
Alternatively, an individual can bring a private lawsuit, asking the court for injunctive relief (typically, the right to access the program or obtain a requested modification). If the individual is successful in proving the alleged discrimination, the individual can also receive an award of attorney’s fees and costs spent in pursing the action.
The individual can also seek relief through the Department of Justice and ask that the government take action (or intervene) on the individual’s behalf to address the alleged discrimination. If the Attorney General chooses to take up the individual’s complaint, remedies can include an injunction requiring the party found to have been in violation of the law to take the requested action, penalties for violation of the ADA, or money damages awarded to the discriminated individual.
The government can also take action independently, for example, if it becomes aware of a pattern of discrimination or the alleged unlawful action involves a matter of general public concern.24
Companion state laws also exist which provide varying degrees of protection from discrimination against those with disabilities. Camps should consult with local counsel regarding the scope of those laws.
IV. Reported Case Law and Settlements Provide Take-Aways for Camps
Challenging issues have arisen since we last wrote on this topic, producing an interesting body of case law and reports of enforcement proceedings that provide new insights into the Act and its application to camps. Importantly, because all three federal disability anti-discrimination laws are similar in their purpose, scope and requirements, courts dealing with alleged disability discrimination issues will often rely, interchangeably, on published legal opinions ruling on the Rehabilitation Act or ADA Title II or Title III cases.25
Participants (including campers) present new issues, or urge old issues with new intensity, regarding matters of health and behavior. Recent cases (not exclusively involving camps) address the following disabilities: HIV infection, Tourette’s syndrome, diabetes, epilepsy, autism, Down syndrome, a susceptibility to heat stroke (alleged disability), Dwarfism, celiac disease and food allergies.
Selected cases and reports involving organizations, including camps reflect:
- A court ordering a camp to accept the application of a nine year old child with HIV and pay penalties following the camp’s discriminatory action in denying the child’s participation in a week long basketball camp, claiming that the child’s presence at the camp would pose a “direct threat” to the safety of other campers.
- The alleged bullying of a teenaged child diagnosed with Tourette’s syndrome and ADHD, who later committed suicide (the child’s parents claiming that the organization essentially denied him equal access to the program by not intervening) — the federal claims were ultimately dismissed.
- A camp agreeing (among other stipulations) in a Settlement Agreement entered into with the government (acting after a complaint of discrimination made by the parents), not to discriminate against children with diabetes and provide those children with equal opportunities to access its programs; to adopt and post a no discrimination policy; to institute mandatory staff training regarding its no discrimination policy and ADA compliance requirements; and to pay a penalty for its discriminatory treatment.
- A camp agreeing (among other stipulations) in a Settlement Agreement entered into with the government (acting after complaint of discrimination made by parents) not to discriminate against children with epilepsy and provide those children with equal access to its programs, specifically, to allow the child discriminated against to attend camp for all future sessions; to adopt a no discrimination policy, epilepsy policies and Title III compliance policies; to institute mandatory staff training on these policies; and to pay civil damages to the offended party.
- A court finding that a plaintiff presented at least a preliminary showing of discrimination (to avoid a motion to dismiss) when a camp refused to admit a child (diagnosed with Down syndrome and autism) without first reviewing his school (highly confidential) Individual Health Plan.
- A youth wrestling league agreeing (among other stipulations) in a Consent Decree entered into with the government (acting after complaint of discrimination made by parents of a child with dwarfism when the league failed to allow a modification for the child to “play down” an age division) not to discriminate against individuals with disabilities; to adopt and post a no-discrimination policy; to institute mandatory training on those policies and its ADA Title III requirements; and to pay civil damages to the offended party.
- A University that required students to sign up for a meal plan, agreeing (among other stipulations) in a Settlement Agreement with the government to adopt and post non-discrimination policies; modify its policies to accommodate students with celiac disease and other serious food allergies; and to pay compensatory damages to offended students26
What can we draw from this growing body of law? Here are some valuable observations that can serve camps well, in the ongoing endeavour to comply with the ADA:
Observation: Individuals and the government are taking more progressive action in seeking compliance with the Act. Whether actions are initiated by an offended individual filing a civil action or notifying the Justice Department, decisions and/or settlements often include some or all of the following: requirements that the organization found to have been in violation of the law, 1) cease discrimination, 2) develop a policy for its website and other materials publicly stating that it will not discriminate against individuals with disabilities, 3) implement policies to educate and train staff on ADA access to program issues and, specifically, to understand the need to consider reasonable modifications to policies and practices, 4) allow the offended individual access to the organization’s program, with designated modifications, 5) pay penalties for its non-compliance (after 4/2014, up to $75,000 for the first violation and $150,000 for a second), 6) pay damages to the offended individual, 7) pay the offended individual’s attorneys’ fees.
Opportunity: Knowing these things, what action can camps take to understand the law, endeavour to comply with it, and avoid legal action?
First of all, many camps are afraid of allowing individuals with disabilities access to their programs, knowing that many of the activities campers engage in are already infused with risks. However, the sampling of decisions noted above demonstrates that camps can’t avoid the issue. It is better to prepare up front than to wait until you are faced with the issues.
CONSIDER THE FOLLOWING SUGGESTIONS
- Talk with an ADA Technical Assistance Center! There are ten centers located around the country. If you call 1-800-494-4242 or go to www.adata.org you will automatically be directed to the center closest to you. These professionals are incredibly knowledgeable and can assist you in prioritizing your ADA compliance efforts.
- Take a top down look at the activities you are offering to your clients. Develop (with appropriate assistance) non-discriminatory EEC for your activities and programs identifying the physical, behavioural and cognitive requirements for participation, focused on risk management and safety considerations. Post these on your website and make those available to all inquiring about your programs. EEC can assist the camp in healthy information exchange with all camper applications — in determining whether your camp is a good choice for a camper’s interest and needs. Importantly, it encourages early dialogue between the camp and interested parties, allowing thoughtful discussion about appropriate program modifications, rather than difficult decisions made just before camp starts! Please see Camp Business Magazine, 2012, “Access to Programs — the Value of Developing Essential Eligibility Criteria” for a targeted look at the value of EEC.
- Develop a no-discrimination statement, and include that your camp will not discriminate against individuals with disabilities. Include this statement on your website and in your camp materials.
- Develop policies consistent with ADA Title III compliance and provide appropriate staff training. Importantly, staff who are speaking with interested individuals via the internet, social media or on the phone should be versed in the law, and encouraged to engage in early dialogue to determine the ability of individuals to participate, with or without modifications. Again, if your camp has developed EEC, it can encourage these conversations early on!
- Review your admissions policies and criteria to assure these materials do not discriminate against individuals with disabilities, and do not inadvertently “screen out” or exclude individuals with disabilities unless you have a specific, legitimate (for example, safety/risk management) reason for doing so.
- Develop questions (typically included in health/medical screening) that elicit information from participants about potential conditions or limitations, and that logically tie into your EEC (if these have been developed).
- In addition to carefully listening to the affected individual’s/parent’s input, use outside resources (e.g., a consulting physician, interest groups, adaptive equipment manufacturers/sellers, associations for specific disabilities, the individual’s physician) in making decisions about potential modifications and associated safety/risk management issues.
- If you determine that an individual has a medical condition or disability, decide whether they can participate in the program, with or without modifications to the program. In considering modifications, analyse those three factors — that is, will allowing access with or without modifications 1) fundamentally alter the nature of the program; 2) result in an undue burden on the camp; or 3) create a direct threat to safety? To assist, you can refer to that break down of EEC you may already have in place.
- Accurately document any screening decisions you make, whether you allow an individual to participate or not, and, whether or not you believe it involves the ADA. Sometimes it can be difficult — on the front end — to determine whether an individual’s “condition” is a protected disability under the ADA. Importantly, many conditions may not qualify as ADA protected disabilities but clearly present a medical or other screening concern. In close cases or gray areas (for example, is this a protected “disability” or not), consider undertaking an ADA analysis. You can address any ADA concerns as well as any medical or safety concerns. Document your analysis of the issues and the basis for the acceptance or denial.
- If an individual threatens to file a complaint or take legal action against your camp after failing to negotiate a plan with you, encourage mediation via the Justice Department. This is offered at no cost to the parties, and can result in an effective plan that preserves your joint relationship, and effectively resolves the dispute. Many people (including attorneys) are unaware of this excellent option.
Find information and resources at www.ada.gov/mediate.htm.
For all of the footnote references, please read the PDF version of this article..
Photo courtesy of Camp Millhouse, Southbend, IN.