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.
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.
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.
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.
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.
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.