ADA in Focus: Spring-Summer 2017

Volume 21, Number 2

ADA In Focus is published three times yearly by the Mid-Atlantic ADA Center. It is also available by request in large print, Braille, audio CD, and computer disk. To obtain copies in other formats, contact us.

ADA In Focus is intended for use by individuals, state and local governments, businesses, legal entities, and others interested in developments in the Americans with Disabilities Act. This publication is intended solely as an informal guidance and should not be construed as legally binding. ADA In Focus does not serve as determination of the legal rights or responsibilities under the ADA for any individual, business or entity. Learn more about the Mid-Atlantic ADA Center.

Spring-Summer 2017, Volume 21, Number 2 (suitable for printing)

Spring-Summer 2017, Volume 21, Number 2, in large print (suitable for printing)

In this issue:

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Center Update

ADA Resource Networks: Connect and Learn

Resource Networks logoThe Mid-Atlantic ADA Center’s professional resource networks have nearly 400 members throughout the region. Network members learn the latest information on the ADA through exclusive webinars and group mailing lists, networking with others who have similar jobs and challenges, and sharing resources and ideas to enhance ADA implementation.

Recent Network Activities:

ADA Leadership Network

  • The ADA Leadership Network (LN) welcomed two new groups of trainers; one in April and one in May.

    • The April training was held in State College, Pennsylvania, for 19 people. This was the third training specifically for the Business Services Division of the Pennsylvania Office of Vocation Rehabilitation (OVR).
    • The May training took place in Owings Mills, Maryland, and was organized in conjunction with Maryland’s Division of Rehabilitation Services (DORS). The audience of 18 participants represented Maryland DORS, the District of Columbia Rehabilitation Services Administration (RSA), Maryland’s Division of Labor, Licensing, and Regulation (DLLR), and three other individuals who have ADA responsibilities in their jobs.
  • LN members conducted a wide array of trainings across the region. Some examples include:

    • A city university’s administrators and faculty were trained on disability etiquette and effective communication;
    • A packing and shipping business’ human resources staff were trained on disability awareness and the employment provisions of the ADA;
    • Chamber of Commerce membership received training on service animals;
    • Parks and recreation employees participated in a training on facility and program access, as well as effective communication;
    • A local government presented an introduction to Title II of the ADA for fire and emergency medical services (EMS) professionals;
    • City managers were trained on disability etiquette and reasonable accommodation to prepare for summer youth employees;
    • A large group of boy scouts participated in disability awareness training.

Title II Network

  • The Network discussed "Unreasonable Requests for Reasonable Modifications" during an interactive webinar in March.
  • Members participated in a listserv discussion on wheelchair accessible service counters.

Network Webinars - Coming Soon

  • We will learn about Montgomery County (Maryland) Department of Transportation’s multi-year, multi-agency project to improve the county’s bus stops.
  • Leaders from Pittsburgh’s Oakland For All: Beyond Accessible initiative will discuss this program, which aims to make the Oakland neighborhood a model of accessibility and inclusion.

Upcoming Network Activities:

  • ADA Leadership Network will hold its annual face-to-face meeting on Wednesday, September 13 in Tysons Corner, Virginia.
  • Corrections and Law Enforcement Network members and other professionals from this field will meet on Friday, September 15 during a lunchtime networking session at the Mid-Atlantic ADA Update.

Not a member? Find more information on the Mid-Atlantic ADA Resource Networks, including the ADA Leadership, Community Partners, Title II, Corrections and Law Enforcement, and Transit networks; call us at 800-949-4232 (DC, DE, MD, PA, VA, WV) or 301-217-0124. Membership is free, but requires application.

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ADA Anniversary: July 26

ADA Anniversary: Celebrate July 26!

red, white, and blue fireworksIt’s been nearly 27 years since the ADA was enacted in a festive outdoor ceremony attended by thousands. Overwhelming majorities in both the House of Representatives and the Senate passed the legislation, and it was signed into law by President George H.W. Bush on July 26, 1990.

The new law represented, for many, a promise of opportunities which had long been denied. President Bush compared signing the bill to taking a sledgehammer to a wall, “one which has for too many generations separated Americans with disabilities from the freedom they could glimpse, but not grasp.”

It took cooperation and compromise to craft the ADA all those years ago, and it will take continued collaboration to achieve its full promise. Celebrate July 26th by learning about the ADA, exploring the ADA National Network’s “Anniversary Tool Kit,” pledging your support to the ADA’s ideals of equal opportunity and inclusion, and taking action to bring those ideals to life in your own workplace, school, business, or community.

“ADA is only the beginning. It is not a solution. Rather, it is an essential foundation on which solutions will be constructed.” – Justin Dart

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Focal Point

Religious Organizations and Private Clubs Under the Americans with Disabilities Act

The Americans with Disabilities Act (ADA) includes some exemptions and allowances for religious entities and private membership clubs. There are distinctions between the two types of entities and how they are addressed under Title I, which covers employers, and under Title III, which covers private businesses that offer goods and services to the general public.

Religious Entities

What are “religious entities”?

Religious entities include places of worship, such as mosques, synagogues, and churches, as well as any other places or programs controlled by religious organizations. For example, schools, hospitals, day care centers, adoption agencies, thrift shops, shelters, or food banks controlled by religious organizations are also religious entities.

Title I

Are religious entities covered by the employment requirements of Title I of the ADA?

Yes, if a religious entity has at least 15 employees, it is covered as an employer by Title I of the ADA and may not discriminate against qualified applicants and employees with disabilities.

However, a religious entity may give preference to individuals of its own religion and may require that all applicants and employees follow the organization’s religious rules.

Additionally, members of the clergy and other employees who perform essentially religious duties, such as conducting religious ritual, worship, or instruction, are generally excluded from the protections of the ADA and other employment discrimination laws. This “ministerial exception” is based on the First Amendment to the Constitution, which limits government interference with the free exercise of religion, and is well established by the courts.

Title III

What does Title III of the ADA cover?

Title III covers private businesses that own, lease, lease to, or operate any of twelve types of “places of public accommodation.” The twelve types are:

  • Places of lodging (e.g., inns, hotels, motels);
  • Establishments serving food or drink (e.g., restaurants and bars);
  • Places of exhibition or entertainment (e.g., theaters, concert halls, arenas);
  • Places of public gathering (e.g., convention centers, lecture halls);
  • Sales or rental establishments (e.g., bakeries, stores, shopping centers);
  • Service establishments (e.g., banks, dry-cleaners, barber shops, gas stations, pharmacies, professional offices of health care providers, accountants, lawyers, etc.);
  • Public transportation terminals, depots, or stations (not including those for air transportation);
  • Places of public display or collection (e.g., museums, libraries, galleries);
  • Places of recreation (e.g., parks, zoos, amusement parks);
  • Places of education (e.g., private schools from nursery schools to colleges);
  • Social service center establishments (e.g., day care centers, senior citizen centers, homeless shelters, food banks, adoption agencies); and
  • Places of exercise or recreation (e.g., gymnasiums, health spas, bowling alleys, golf courses)

Title III also covers private businesses that offer classes or tests related to applications, licensing, certification, or credentialing for secondary or post-secondary education, professional, or trade purposes. Examples include the GED, SAT, GRE, LSAT, and MCAT tests, as well as classes designed to prepare students to take these examinations.

Are religious entities covered by Title III of the ADA?

No, religious entities are completely exempt from Title III of the ADA. All of their facilities, programs, and activities, whether they are religious or secular in nature, are exempt.

Are religious entities’ programs covered by Title III if they are open to the general public?


For example, if a religious organization controls a school that is open to both members and non-members of the religious organization, the school is still considered a religious entity and is exempt from Title III. Likewise, if a religious entity holds an event, such as a festival or performance, which is open to the general public, it is exempt. (However, see the section on the application of the Rehabilitation Act to organizations that receive federal funding.)

What if a non-religious agency or business operates in space rented from a religious entity?

The religious entity’s exemption does not extend to a non-religious tenant.

For example, if a private business rents space in a religious entity’s building and operates a day care center that is open to the general public, the business will be covered by Title III and subject to all its requirements. The religious entity, however, remains exempt even though it “leases to” a covered entity.

Similarly, if a state or local government offers a program or activity at a religious entity’s facility (e.g., a polling place located at a church), the state or local government agency, not the religious entity, is responsible for compliance with Title II of the ADA in relation to that program or activity.

Private Membership Clubs

What are private membership clubs?

“Bona fide” private membership clubs are organizations that generally have some meaningful conditions for membership, with operations often controlled by the membership, and whose facilities and activities are only open to members and their guests, not to the general public. Private clubs are often formed for social or recreational purposes, to promote common causes, or to associate with others who share similar viewpoints or values.

Title I

Are private clubs covered by the employment requirements of Title I of the ADA?

Non-profit private clubs – except for labor organizations (“unions”) – are exempt from Title I of the ADA. In determining whether an organization is truly private, the U.S. Equal Employment Opportunity Commission (EEOC), which regulates Title I, considers factors such as:

  • How or to what extent the club is controlled or owned by the membership
  • The extent to which facilities and services are limited to members and their guests
  • Whether or how the organization solicits members or promotes the use of its facilities or services by the general public

In determining whether an organization has meaningful conditions of limited membership, factors to consider include:

  • The size of the membership and whether there are limits on the size of the membership
  • Membership eligibility requirements

Although determining whether a particular organization is exempt depends on analyzing specific facts, the EEOC provides illustrative examples in Section 2 of its Compliance Manual:

Example 1 - Respondent [club] was founded to promote the popularity of golf as a recreational activity. It has 200 members, who provide all operating revenue. It is exempt from taxation under section 501(c) of the Internal Revenue Code. Members have free use of the organization's facilities, including the golf course, health spa, meeting rooms, and cafeteria. Nonmembers may only use the facilities at the request and in the presence of a member. Applicants for membership must be at least 25 years of age, have an undergraduate degree, know at least five current members, and be nominated by a current member, who must explain how s/he knows the nominee and the reason the nominee should be admitted for membership. Respondent has admitted most but not all applicants. Respondent qualifies as a "bona fide private membership club" and would not be covered by … the ADA.

Example 2 - Same facts as above, except that nonmembers may use the facilities without a sponsoring member by paying an extra fee. Applicants for membership need only know one current member, and Respondent has admitted all applicants for membership. Respondent has not established that it is private, nor that it has meaningful conditions of limited membership; therefore, it is not a bona fide private membership club.

Organizations that do not meet the criteria for exemption would be covered by Title I if they have at least 15 employees.

Title III

Are private clubs covered by Title III?

No, bona fide private membership clubs are exempt from Title III except to the extent that their facilities are opened as places of public accommodation to the general public.

Courts, in deciding whether an organization is truly a private club, have considered factors such as:

  • The degree to which members control club operations
  • The selectivity of the membership process
  • Whether substantial membership fees are charged
  • Whether (or to what extent) the facilities are open to the public
  • Whether (or to what extent) the club receives public funding
  • Whether the club was created specifically to avoid compliance with civil rights laws

Additionally, the First Amendment to the Constitution, which protects the rights of free speech and assembly, has been interpreted by the courts to include the right of “association,” that is, the right to choose with whom we associate in private settings. A private club also has the right of “expressive” association, which means it is allowed to exclude individuals who do not represent the organization’s viewpoints or principles. This enables a private club to express a cohesive and consistent message to both its members and the public.

The constitutional right of expressive association means that many organizations that may not appear to meet the criteria of private membership clubs (e.g., they have minimal fees or few limitations on membership) may still be exempt from Title III of the ADA or other civil rights laws. (However, see the section on the application of the Rehabilitation Act to organizations that receive federal funding.)

What does it mean for a private club to lose its exemption “to the extent” it is open to the general public?

Many organizations that generally meet the criteria of private membership clubs may occasionally (or even routinely) hold events that are open to the general public – people who are neither members nor individually invited guests of members. Clubs may hold such events to promote their views, raise funds for a charitable cause, or even as a way to recruit potential members.

A club may lose its exemption only on a temporary basis; for example, if an organization holds a charitable fundraiser, opening its facility and selling foods and beverages to the general public for one evening every five years, it may only be subject to Title III for the purposes of that specific event. The nature and frequency of such activities, however, may affect the organization’s status as a private club. The U.S. Department of Justice (DOJ), which regulates Title III, explains in a letter addressing the application of Title III to the construction of a new fraternity house, where the fraternity may be exempt from Title III if it is a private club:

Nonetheless, private clubs are still covered by title III to the extent that they open up their establishments to the general public for a purpose that falls within one of the categories of places of public accommodation. Thus, if the fraternity hosts events that are open to persons other than the fraternity members and their guests, the fraternity must make accessible the public areas during those events. The more often such public events occur, the higher the obligation to make the publicly used areas accessible. If, for example, only one event in several years is open to the general public, a temporary ramp may be sufficient to make the area accessible, while, if the fraternity hosts several such events during the course of a year, it may be obligated to construct a permanent ramp.

So, are fraternities and sororities exempt from the Title III?

Fraternities and sororities that are owned or operated by a post-secondary school that is itself covered by Title III would be covered because they would be considered part of the school. Similarly, fraternities and sororities owned or operated by a public institution (a state or local government school like a state university or community college) would be covered by Title II of the ADA.

However, if a fraternity or sorority is independent:

  • It would not be covered by Title III if it does not conduct any of the activities covered by Title III, such as the operation of a place of public accommodation (e.g., it only serves as the residence of the members; private residences are not covered by Title III), OR
  • Even if it, or some part of it, would otherwise fall into the orbit of Title III (e.g., the organization operates a café in its facility), it may be exempt from Title III if it meets the criteria of a bona fide private membership club and is not open to the general public

What if a private club rents space to a public accommodation?

The private club would lose its exemption, but only in relation to the place of public accommodation. The DOJ gives an example in its Title III Technical Assistance Manual:

A private country club that would be considered a "private club" for ADA purposes rents space to a private day care center that is also open to the children of nonmembers. Although the private club would maintain its exemption for its other operations, it would have title III obligations with respect to the operation of the day care center.

The obligations the club would have as the landlord of the day care center might include things like improving structural access in existing spaces used by the day care center, when improvements would be “readily achievable” (accomplished without much difficulty or expense).

Federal Funding and the Rehabilitation Act

Section 504 of the Rehabilitation Act covers the agencies of the executive branch of the federal government, and any entity that receives funding from those agencies. The Rehabilitation Act, signed into law in 1973, is the predecessor of the ADA; the provisions of the two laws are virtually the same.

Therefore, organizations that are exempt from the ADA but receive federal funding may be subject to the full range of requirements that address disability-based discrimination, including ensuring access to goods and services, making reasonable policy modifications, and communicating effectively with individuals who have vision, hearing, or speech disabilities.

Facility Access and Building Codes

State and local building codes usually apply to all types of buildings. The application of building codes is commonly triggered by new construction and certain types of alterations. It is less common for building codes to require accessibility improvements in existing facilities that are not being renovated or altered, but some code requirements may be triggered by other activities, such as changing the use of a building from one type to another (for example, converting an old factory into a place of religious worship). Building codes invariably include some accessibility requirements, which are often similar to those found in the ADA Standards for Accessible Design.

Naturally, building codes don’t address the broader kinds of policy and operational issues that civil rights laws like the ADA are designed to tackle. But newly constructed and altered private clubs and religious organizations’ facilities will typically include basic accessibility features.

What’s in a Name?

It’s important to note that the names of organizations or facilities do not necessarily indicate their status as either religious entities or private membership clubs. Many businesses have the word “club” in their names, but are not at all private. Membership may be required to use the facilities or services, but joining may simply involve paying a minimal fee, with little or no other selection criteria or limitations. Membership is really open the general public. There are many fitness facilities, golf courses, restaurants, stores, and other businesses that are called “clubs,” but that are not the kind of truly private membership clubs that are exempt from the ADA.

Likewise, there are many businesses with religious-sounding names that are not controlled by (or even associated with) religious organizations. Some of these places were founded by religious entities, but are no longer controlled or operated by them; private businesses have taken over and simply kept the traditional names. Some businesses choose religious-sounding names to indicate the nature of the business (e.g., an independent book store that specializes in religious books). Still other religious-sounding business names are simply based on geographic locations (after all, the country is teeming with secular places – including hundreds of cities and towns – with names based on biblical references or Christian saints, from St. Augustine to Zion National Park, with Bethlehem, Lebanon, San Francisco, and many more in between).

Whether, or to what extent, an organization is exempt under the ADA does not depend on its name, but rather on how it operates and by whom it is controlled.

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Zoom in on Training

Mid-Atlantic ADA Center Webinars

Check our Trainings/Workshops pages for more details!

ADA National Network Online Learning

Check out the ADA National Network’s programs, which include the ADA Audio-Conference Series, the ADA Legal Webinar Series, the Accessible Technology Webinar Series, and, in collaboration with the U.S. Access Board, the Accessibility Online Webinar Series. Upcoming sessions:

Annual Mid-Atlantic ADA Update

September 13 – 15, 2017
Tysons, Virginia
Join us for the region's leading conference on the ADA, featuring a variety of sessions on topics such as accessible design, inclusive program planning, and disability employment issues.

This is just a sample of the variety of training opportunities coming up on a local, regional, and national level. Visit our Trainings pages for a comprehensive listing!

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Close-Ups: What's New

Access Board Issues Guidance on ISA and Use of Alternate Symbols

International Symbol of Accessibility (ISA)The U.S. Access Board issued Guidance on Use of the International Symbol of Accessibility Under the Americans with Disabilities Act and the Architectural Barriers Act to explain how use of a symbol other than the International Symbol of Accessibility (ISA) may impact compliance with standards under those laws.

The ISA was developed nearly 50 years ago, and has been used around the world ever since to identify accessible spaces and elements. It has been adopted under the ADA and ABA standards, as well as numerous other standards and codes in the United States, to help ensure the use of a consistently recognized and understood image in certain contexts.

“Uniform iconography promotes legibility, especially for people with low vision or cognitive disabilities.” – U.S. Access Board

The display of the ISA is required by the ADA Standards to identify or provide direction to certain accessible spaces and elements, including parking spaces, entrances, toilet and bathing rooms, check-out aisles, and vehicles. Alternate symbols or images in these specific locations, unless they meet the provision for “equivalent facilitation” (providing “substantially equivalent or greater accessibility and usability”), will not comply with standards.

Find the new guidance, along with other helpful information, illustrations, and animations in the Access Board’s Guide to the ADA Standards.

Updated: ADA Title II Action Guide

The New England ADA Center updated their popular guide to help state and local governments understand ADA requirements and adopt practical approaches to accessibility and inclusion.

The revised guide, available directly online, outlines a step-by-step process to achieve compliance, provides information on general requirements, and addresses new areas of focus, such as web accessibility and emergency preparedness programs. The guide also includes resources, frequently asked questions, and sample forms and documents to aid implementation.

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Zoom in on Court Decisions and Settlements

Pennsylvania Judge Rules that Individual Claiming Disability Discrimination Based on Gender Dysphoria May Proceed with ADA Case

A judge in the U.S. District Court for the Eastern District of Pennsylvania refused to dismiss the ADA claims of the plaintiff in the case of Blatt v Cabela’s Retail, Inc.. The plaintiff, who was “diagnosed with ‘Gender Dysphoria, also known as Gender Identity Disorder’” alleged that she was discriminated against based on her sex (in violation of the Civil Rights Act) and disability. Cabela’s sought dismissal of the disability claims because the ADA specifically excludes from protection individuals with “gender identity disorders not resulting from physical impairments.” The plaintiff countered that applying the exclusion to her case would violate her constitutional right to equal protection under the law.

The judge noted that the “constitutional-avoidance canon” requires a court, when the constitutionality of a law is challenged, to “’ascertain whether a construction of the statute is fairly possible by which the [constitutionality] question may be avoided.’”

The judge found “such an interpretation, namely, one in which the term gender identity disorders is read narrowly to refer to only the condition of identifying with a different gender, not to encompass (and therefore exclude from ADA protection) a condition like Blatt’s gender dysphoria, which goes beyond merely identifying with a different gender and is characterized by clinically significant stress and other impairments that may be disabling.”

The first-of-its-kind decision thus parsed the language of the ADA’s exclusion and the refined definition and understanding of gender dysphoria – dysphoria refers to a state of dissatisfaction, unease, anxiety, or distress – to distinguish the plaintiff’s gender identity from the impairments that “substantially limit her major life activities of interacting with others, reproducing, and social and occupational functioning.”

The case will proceed to explore the merits of the plaintiff’s claims that she was discriminated against, retaliated against for requesting accommodation, and ultimately terminated because of her disability.

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Snapshots: Cool and Useful Websites

Diversity Partners

This organization works to bridge the gaps between workforce development professionals, job seekers with disabilities, and businesses. The site offers “toolboxes” – online training modules, resources, and planning guides for job developers, employment specialists, disability service agencies, staffing firms, and other workforce professionals and leaders.

National Task Force on Workforce Development for People with Disabilities

This task force includes disability advocates and service providers, professionals from business and industry, and elected officials and representatives of government agencies from across the country. The site includes a collection of state-specific agencies, resources, programs, and legislative information, as well as the 2016 report Work Matters: A Framework for States on Workforce Development for People with Disabilities.

TechCheck for Employers

This free, interactive tool was developed by the Partnership on Employment and Accessible Technology (PEAT) to help organizations improve the accessibility of the information and communications technologies they use.

#ApprenticeshipWorks Video Series

This video series features apprentices with and without disabilities and their apprenticeship sponsors in high-growth industries like information technology, healthcare, and marine engineering. These videos show how apprenticeship works for them and how it can work for other job seekers and businesses across the country. Videos are available in English and Spanish with full captioning and audio introduced versions.

Disability Counts Data Finder

The Research and Training Center on Disability in Rural Communities (RTC: Rural) at the University of Montana developed this resource to provide a one-stop shop for downloading disability data for every county across the U.S. and Puerto Rico.

Rooted in Rights

This advocacy organization produces videos and social media campaigns on disability rights issues, including employment, criminal justice, and emergency preparedness and response. Check out their latest, Like the Mic, a short and entertaining video that explains why and how to use microphones to facilitate inclusive meetings.

Veterans: Make the Connection

man wearing a cap with "veteran" stitched on the brim; small American flags are tucked on each sideThis new online resource is designed to connect veterans, their families and friends, and other supporters to information, resources, and solutions to issues affecting their lives, including mental health conditions and traumatic brain injury. The comprehensive searchable directory links visitors to Veterans Administration (VA) medical centers, mental health programs, benefits counselors, and other local resources. The site also features videos from more than 400 veterans and their family members, sharing stories of strength and recovery.

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