Public Accommodations: Reasonable Modifications

Statutes
Regulations
Case Law

Statute:

42 U.S.C. § 12182(b)(2)(A) - Prohibition of discrimination by public accommodations

For purposes of subsection (a) of this section, discrimination includes -

(ii) a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations;

Regulation:

28 C.F.R. § 36.302 - Modifications in policies, practices, or procedures

(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.

(b) Specialties

(1) General - A public accommodation may refer an individual with a disability to another public accommodation, if that individual is seeking, or requires, treatment or services outside of the referring public accommodation's area of specialization, and if, in the normal course of its operations, the referring public accommodation would make a similar referral for an individual without a disability who seeks or requires the same treatment or services.

(2) Illustration--medical specialties - A health care provider may refer an individual with a disability to another provider, if that individual is seeking, or requires, treatment or services outside of the referring provider's area of specialization, and if the referring provider would make a similar referral for an individual without a disability who seeks or requires the same treatment or services. A physician who specializes in treating only a particular condition cannot refuse to treat an individual with a disability for that condition, but is not required to treat the individual for a different condition.

(c) Service animals

(1) General - Generally, a public accommodation shall modify policies, practices, or procedures to permit the use of a service animal by an individual with a disability.

(2) Care or supervision of service animals - Nothing in this part requires a public accommodation to supervise or care for a service animal.

(d) Check-out aisles - A store with check-out aisles shall ensure that an adequate number of accessible check-out aisles is kept open during store hours, or shall otherwise modify its policies and practices, in order to ensure that an equivalent level of convenient service is provided to individuals with disabilities as is provided to others. If only one check-out aisle is accessible, and it is generally used for express service, one way of providing equivalent service is to allow persons with mobility impairments to make all their purchases at that aisle.

Case Law:

PGA Tour, Inc. v. Martin, 532 U.S. 661 (2001).

Pro golfer Casey Martin sued the PGA tour under Title III, due to its "walking rule", for not allowing him to use a golf cart to accommodate his disability.
An individualized inquiry must be made to determine whether 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
Congress intended that an entity like the PGA not only give individualized attention to the handful of requests that it might receive from talented but disabled athletes for a modification or waiver of a rule to allow them access to the competition, but also carefully weigh the purpose, as well as the letter, of the rule before determining that no accommodation would be tolerable.

Johnson v. Gambrinus Co./Spoetzl Brewery, 116 F.3d 1052, 1059 (5th Cir. 1997)

The plaintiff has the burden of proving that a modification was requested and that the requested modification is reasonable. The plaintiff meets this burden by introducing evidence that the requested modification is reasonable in the general sense, that is, reasonable in the run of cases.
While the defendant may introduce evidence indicating that the plaintiff's requested modification is not reasonable in the run of cases, the plaintiff bears the ultimate burden of proof on the issue.
If the plaintiff meets this burden, the defendant must make the requested modification unless the defendant pleads and meets its burden of proving that the requested modification would fundamentally alter the nature of the public accommodation.
The type of evidence that satisfies this burden focuses on the specifics of the plaintiff's or defendant's circumstances and not on the general nature of the accommodation. Under the statutory framework, such evidence is relevant only to a fundamental alteration defense and not relevant to the plaintiff's burden to show that the requested modification is reasonable in the run of cases.

Fortyune v. American Multi-Cinema, Inc., __ F.3d __ (9th Cir. April 14 ,2004).

Plaintiff using a wheelchair was prevented from seeing a movie because a patron without a disability refused to give up his seat (designated as a companion seat) for the plaintiff's companion.
The determination of whether a particular modification is 'reasonable' involves a fact-specific, case-by-case inquiry that considers, among other factors, the effectiveness of the modification in light of the nature of the disability in question and the cost to the organization that would implement it."
"As a public accommodation, AMC is responsible--on a daily basis--for ensuring that its patrons act reasonably and responsibly with regard to an array of company, state, and federal law or policies... AMC must assure conformity with local and state smoking ordinances, as well as its own internal policies regarding patrons who talk, use cell phones, or otherwise disturb others during a film's screening. While resort to forcible removal is seldom required, AMC conceded at oral argument that it has had the occasion to call upon its own security force, or that of the local police authorities, to ensure compliance with the law or its own internal policies."
"Fortyune's requested modification requires no less and no more of AMC. AMC must adopt a policy that ensures companion seating will be made available to the individuals for whom they are designed: the companions of wheelchair- bound patrons. This is required even if a person not accompanying a wheelchair- bound patron refuses to vacate a companion seat at the request of a wheelchair- bound patron. AMC agrees that such events are exceedingly uncommon, so enforcement of the ordered policy will incur neither excessive financial costs nor an extensive administrative burden."
"In the rare event that an individual will not move seats, it is reasonable to require that AMC ensure that a wheelchair-bound patron be permitted to sit next to his or her companion as contemplated by the ADA and its implementing regulations."
In cases which concern a public accommodation's policy regarding the use of that design (e.g., the use and availability of a companion seat), the provisions of the ADAAG are not controlling.