Small Business and the ADA: What 
You Need to Know You Need to Know 

Paula N. Rubin 

U.S. Department of Justice 
Disability Rights Section 
July 15, 2010 

Slide 1
The Big Picture 

Coverage: 
Does the individual meet the definition of disability under the ADA 
Amendments Act? 
Title I 
Employers 
Title II 
State and Local 
Government 
Title III 
Public 
Accommodations 
Damages 

Slide 2
Title III Public Accommodations 
Key Phrases (graphic of keys with key 
ring) 


Key Phrases 
No discrimination on the basis of disability 
No denial of full and equal enjoyment of the


goods, services, facilities, privileges,
advantages, and accommodations 
By any place of public accommodation 


Slide 3
Ask Yourself: (graphic of Question Mark 

with figure of a person leaning against it.) 

1. 
Does the person have a disability? 
2. 
What is the public accommodation? 
3. 
How is full and equal enjoyment of the goods, services,
facilities, privileges, advantages, and accommodationsbeing denied? 
• 
Eligibility criteria? 
• 
Policies, procedures, or practices? 
• 
Communication? 
• 
Architecture? 

actual or expected duration of 6 months or less.] actual or expected duration of 6 months or less.] 
1. Does the person have a disability? 
The ADA Amendments Act of 2008 defines disability as: 
An individual with 

(A) 
A physical or mental impairment that substantially limits one or 
more major life activities of such individual; 
(B) 
A record of such an impairment; or 
(C) 
Being regarded as having such an impairment (as described in 
paragraph (3)). 
• 
[(3) REGARDED AS HAVING SUCH AN IMPAIRMENT.—For purposes of 
paragraph (1)(C): ‘‘(A) An individual meets the requirement of ‘being 
regarded as having such an impairment’ if the individual establishes 
that he or she has been subjected to an action prohibited under this Act 
because of an actual or perceived physical or mental impairment 
whether or not the impairment limits or is perceived to limit a major life 
activity. ‘‘(B) Paragraph (1)(C) shall not apply to impairments that are 
transitory and minor. A transitory impairment is an impairment with an 

Slide 4
Terms of Art: 

The ADA Amendments Act rejected several Supreme Court decisions that narrowed the 
scope of the definition of disability. To broaden the coverage, the ADAAA looked at 
several significant terms in the definition. 

Impairment – left the same 
Substantially Limits -rejected the requirement that whether an impairment 
substantially limits a major life activity is to be determined with reference to the 
ameliorative effects of mitigating measures; and rejected cases that previously found 
that the terms ‘‘substantially’’ and ‘‘major’’ in the definition of disability under the ADA 
‘‘need to be interpreted strictly to create a demanding standard for qualifying as disabled.’’ 

Major Life Activities -rejected the requirement that to be substantially limited in performing 
a major life activity under the ADA ‘‘an individual must have an impairment that prevents or 
severely restricts the individual from doing activities that are of central importance to most 
people’s daily lives.’’ The ADAAA states that major life activities include major bodily 
functions (such as, immune system, normal cell growth, digestive, bowel, bladder, brain, 
respiratory, circulatory, endocrine, reproduction). 

(graphic of paint pallette & paint brush) 


Slide 5
What Is Public Accommodation? 


A facility operated by a private entity 
whose operation affects commerce and 
falls into one of 12 categories. 

These 12 categories are exhaustive. 

Slide 6
The Big 12: 

1. Entertainment Establishments – movie theater, stadium 
2. Exercise – gym, spa, golf course, bowling 
3. Lodging – hotel, motel, B&B with more than 5 rooms 
4. Museums/Galleries – library, places of public display 
5. Public Gatherings – convention center, lecture hall 
6. Recreation – park, zoo, amusement park 
7. Restaurants/Bars – food and/or drink 
8. Sales Rental – bakery, grocery, malls 
9. Schools/Education – nursery, grade school, university 
10. Service Centers – day care, senior care, shelters 
11. Service Establishment – doctor, lawyer, dry cleaner 
12. Terminal/Depot-station used for public transportation 

Slide 7
The Big Picture: 

Is it a Public Accommodation? 

1. 
The love boat? 
2. 
Building owned by the Federal government 
that has a store in the lobby? 
3. 
Apartment building? 
4. 
Internet only business? 

Slide 8
How’d You Do’d You Do? 


1. 
The love boat? Yes. Lodging, public areas: bars, 
restaurants, spa, fitness rooms. 
2. 
Building owned by the Federal government that has a store 
in the lobby? No and Yes. The building is covered by 
Section 504 [The Federal government is exempt from the 
ADA.] If the store is owned and operated by a private 
business, then it is. [retail establishment.] 
3. 
Apartment building? No. Residences are covered by the Fair 
Housing Amendments Act. BUT, the rental office would be 
covered by the ADA since the public goes there. [sales] 

A Word or Two About the Web: 


4. 
Internet only business? 
¦ 
Just bricks -Title III applies. 
¦ 
• 
Bricks and clicks. Title III applies to the 
bricks and the clicks. 

• 
Just clicks. The courts have disagreed. 

3. How is full and equal enjoyment of 
the goods, services, facilities, 
privileges, advantages and 
accommodations being denied? 
• Eligibility Criteria 
• Policies, procedures, and practices 
• Communication 
• Architecture 

Eligibility Criteria: 


…may not impose eligibility requirements that 
screen out or tend to screen out persons with 
disabilities…UNLESS it can show that the 
requirements are necessary for the provision of the 
goods, services, facilities, privileges, advantages, 
and accommodations…[statute] 

…may impose legitimate safety requirements…that 
are based on actual risks, and not on speculation, 
stereotypes, or generalization about individuals 
with disabilities [regulations] 


Slide 9
Test Your Knowledge: (picture of a 

stopwatch) 
Are these permissible eligibility requirements? 

1. 
You must be this tall to go on this ride. 
2. 
You must present a driver’s license to be 
served alcohol in our bar. 
3. 
Wheelchair users must travel with a 
companion to cruise on the Love Boat. 

Slide 10
You Must be at least this tall to ride. 

Graphic "You Must Be at least This Tall to Ride" with 
figure of person looking up at sign) 

Yes. Legitimate safety requirement are 

permissible. 

Slide 11
You must present a driver’s license to 
be served alcohol in our bar. 
’s license to 
be served alcohol in our bar. 

No. Requiring a driver’s license as the sole 
source of identity can screen out or tend to 
screen out persons with disabilities. 


Slide 12

Wheelchair users must travel with a 
companion to cruise o the Love Boat. 

No. This would violate the ADA unless the 
Love Boat can demonstrate a compelling 
reason that this is necessary. 

(picture of Ship sailing) 


Slide 13
Policies, Procedures and Practices 


Discrimination includes: 

a failure to make reasonable modifications to 
policies, procedures, and practices when such 
modifications are necessary to afford such 
goods, services, facilities, privileges, 
advantages, and accommodations UNLESS 
doing so would fundamentally alter the 
nature of the goods, services, facilities, 
privileges, advantages, and accommodations 

Slide 14
Policies, Procedures and Practice 
Makes Perfect 


1. Only one person at a time in the dressing room. 
2. Husband may not assist wife in the Discount Mart’s 
ladies’ room accessible toilet stall. 
3. No siblings without disabilities in summer camp for 
kids with disabilities. 
4. No animals allowed in the waiting room of an 
allergy clinic. 


Slide 15
Only one person at a time in the 
dressing room 

Policy should be modified to allow personal 
assistant to help a person with a disability try 
on clothing. 


Slide 16
Husband may not assist wife in the 
discount mart’s ladies room’s 
accessible toilet stall. 

(graphic of Ladies Room with man figure 
crossed out) 

Reasonable modification of policy is required. 
What about privacy issues? 

• 
Separate family/single-user toilet stall. 
• 
Close the ladies room for the short time the 
couple is using it. 
.Post an employee outside while the couple uses 
the accessible stall. 

Slide 17
No siblings without disabilities in summer 


camp for kids with disabilities. 

The integration mandate: a public 
accommodation shall afford the goods, 
services, facilities, privileges, advantages and 
accommodations …in the most integrated 
setting appropriate to the needs of the 
individual. 

• opportunity to participate in programs or 
activities that are not separate 


• separate programs are okay 
• not required to accept the accommodation, aid, 
service, opportunity, or benefit available 

Slide 18
Back to Camp 

First, a summer camp for kids with disabilities does 
not offend the ADA. 

Second, children with disabilities cannot be required 
to attend that camp, but have the choice to attend 
camps for kids with or without disabilities. 

Finally, in the example the child with the disability 
wants to go to the camp for kids with disabilities. 

So far so good. 

Slide 19
Still in Camp 

So, does the ADA require the camp for kids 
with disabilities to allow siblings (without 
disabilities) to attend? 

No. The sibling without a disability is not 
covered by the ADA. 

Any exception? 

Slide 20
No animals allowed in the waiting 
room of an allergy clinic. 

The policy may need to modified to permit 
service animals in the waiting room. 

When? 

Picture -warning sign that reads “warning: no pets 
allowed”) 


Slide 21
A Word About Service Animals 

• Service animals are working animals, not pets. 
• A service animals is individually trained to perform 
a task for a person with a disability. 
• Public accommodations must permit persons with 
disabilities to bring their service animals in all 
places customers are allowed to go. 
• This includes restaurants, hotels, doctors’ offices, 
hospitals, taxis, health clubs, zoos, and parks. 

Slide 21
Back to Our Example 


The allergy clinic would need to modify its 
polices, procedures, and practices to permit 
service animals the waiting room. 

Allergies and fear of animals are generally not 
valid reasons for generally not denying access 
or refusing service to people with service 
animals. 

However… 


Slide 22
…a person with a disability may ba person with a disability may be 
asked to remove his or her service 
animal if: 


1. 
The animal is out of control and the person 
doesn’t take effective steps to control it 
[example: barking dog in a theater]; or 
2. 
The animal poses a direct threat to the health and 
safety of others. [significant risk that can’t be 
eliminated by modifying policies, procedures, and 
practices; or auxiliary aids and services using an 
individualized assessment based on reasonable 
judgment using medical knowledge or the best 
available objective evidence] 

Slide 23
Back to Our Example Again 


Is there a direct threat? 
Are there other reasonable modifications? 


Slide 24
Fun with Fundamental Alteration 

Remember, reasonable modification is not 
required if it would fundamentally alter the 
nature of the goods, services, facilities, 
privileges, advantages, and accommodations. 

A fundamental alteration is a change such 
that the goods, services, facilities, privileges, 
advantages, and accommodations ARE NO 
LONGER THE SAME goods, services, facilities, 
privileges, advantages, and accommodations. 


Slide 25
Still Having Fun 

Casey Martin v. the PGA 

What about … 

1. 
Hybrid Heaven Rental Car Company will only 
accept credit cards of the actual driver. 
2. 
Community College requires a high school 
diploma or GED to matriculate. Individual 
with severe learning disabilities doesn’t 
have either. 

Slide 26
What About? 

• Hybrid Heaven Rental Car Company will 
only accept credit cards of the actual 
driver. Requiring H² to accept credit 
cards from non-drivers would not be a 
fundamental alteration. 

• Modifying policy requiring a high school 
diploma or GED would be a fundamental 
alteration. 

Slide 27
Communication? 

Public Accommodations are required to provide 
auxiliary aids and services that are necessary to 
ensure equal access to the goods, services, facilities, 
privileges, advantages, and accommodations UNLESS 
it is a fundamental alteration and orundue burden. [A 
few words about undue burden later.] 

Equal access means making available the appropriate 
auxiliary aids and services needed to provide 
effective communication. 

Effective communication: An example. 

Slide 28
Auxiliary Aids and Services 
Effective Communication Effective Communication 

Includes: 

Blind 
Low Vision 
Deaf Hard of Hearing 
Speech 
Includes 

Qualified interpreters 
Note takers 
Computer aided

transcription 
Assistive listening 

systems 
Braille 
Large print 
TTYs 
Closed Captioning 

Slide 29
True or False? 

1. 
Bookstores are required to order books inBraille upon request. 
2. 
The planetarium will need to turn up thelights so a deaf guest can see a signlanguage interpreter. 
3. 
A clerk in a camera store can use written 
notes to help a deaf customer. 
4. 
An attorney can use written notes whenmeeting with a client. 
5. 
Hospitals must provide sign languageinterpreters. 

Slide 30
And the Answer Is… 


1. 
Bookstores are required to order books inBraille upon request. FALSE. 
2. 
The planetarium will need to turn up thelights so a deaf guest can see a signlanguage interpreter. FALSE. 
3. A clerk in a camera store can use written 
notes to help a deaf customer. TRUE. 
4. 
An attorney can use written notes whenmeeting with a client. FALSE. 
5. 
Hospitals must provide sign languageinterpreters. FALSE. 

Slide 31
Architecture 

(picture of blue prints and pencil with eraser) 

When was it built? 
Why does it matter? 



Slide 32
When Was It built? 


Key Dates: 
Built before January 26, 1992 
Or, First Occupied after January 26, 1993 


In simplified terms, if it was built before this 
date it is considered an existing facility. 

Facilities built after this date are considered 
new construction. 


Slide 33
Why Does It Matter? 


New construction must be built in accordance with 
the ADA Standards for Accessible Design [The 
Standards] or the Uniform Federal Accessibility 
Standards [UFAS]. 

Note: the term ADAAG stands for the Americans with 
Disabilities Accessibility Guidelines. ADAAG contains 
guidelines, not enforceable standards. 

There is no “cost” defense for new construction 


Slide 34
Existing architecture? 


Public accommodations must remove 
architectural barriers where it is readily 
achievable to do so. 

Readily achievable means easily 
accomplishable and able to be accomplished 
without much difficulty or expense. 


Slide 35
Building Knowledge 

Yes or No? 

1. 
A restaurant, built in 1990, with two steps at the entrancemust install a ramp. 
2. 
A brand new golf course has inaccessible toilets by the 9th 
hole. It must make them accessible. 
3. 
Hybrid Heaven must provide cars with hand controls. 
4. 
The Bates Motel has steps to the office. It can install a bell 
outside to allow for curbside check-in. 
5. 
The Nuke ‘n Fry all you can eat buffet serving tables are 42inches high. It is acceptable to have a server bring the foodto a person with a disability. 

Slide 36
Yes or No? 


1. 
A restaurant, built in 1990, with two steps at the entrancemust install a ramp. YES, if readily achievable and no other 
way in. 
2. 
A brand new golf course has inaccessible toilets by the 9th 
hole. It must make them accessible or tear them out. YES. 
3. 
Hybrid Heaven must provide cars with hand controls. YES. 
4. 
The Bates Motel has steps to the office. It can install a bell 
outside to allow for curbside check-in. YES. 
5. 
The Nuke ‘n Fry all you can eat buffet serving tables are 42inches high. It is acceptable to have a server bring the food
YES. to a person with a disability. 

Slide 37
Barrier Removal…When In Doubt …When In Doubt 

Prioritize 

1. 
Enable the person to get in the door. 
2. 
Provide access to the areas where goodsand services are provided to the public. 
3. 
Provide access to the restrooms. 
4. Remove any remaining barriers to using
the public accommodation’s facilities. 

Slide 38
Dollars and Sense 


Three Things to Consider: 

1. $urcharges 
2. Undue Burden 
3. Tax Credits for small businesses 

Surcharges: public accommodations may not charge 
persons with disabilities for the cost of an 
accommodation. 
persons with disabilities for the cost of an 
accommodation. 

True or False? 

1. 
A deaf individual requested a sign language interpreter for 
a conference, and then did not attend. The conference can 
send her a bill for the interpreter services not used. 
2. 
A grocery store is inaccessible to wheelchair users (narrow 
aisles and steps). The grocery store may charge for home 
delivery. 
3. 
A person with HIV needs oral surgery. The dentist insists 
on performing the surgery at a local hospital in case there 
are complications. The patient is responsible for the 
emergency room fees. 

Slide 39
Surcharges: True or False? 

1. 
A deaf individual requested a sign language interpreter for 
a conference, and then did not attend. The conference can 
send her a bill for the interpreter services not used. FALSE 
2. 
A grocery store is inaccessible to wheelchair users (narrow 
aisles and steps 
3. 
0. The grocery store may charge for home delivery. FALSE 
4. 
A person with HIV needs oral surgery. The dentist insists 
on performing the surgery at a local hospital in case there 
are complications. The patient is responsible for the 
emergency room fees. FALSE 

Slide 40
Undue Burden: 


Significant expense or difficulty. 
Look at: 

1. 
Nature and cost of action needed; 
2. 
Overall resources of the site or sites involved; 
3. 
Geographic separateness (and administrative and fiscal 
relationship) of the site/s in question to the parent 
company; 
4. 
If applicable, the overall financial resources of the parent 
organization; and 
5. 
If applicable, the type of operation of the parent 
corporation. 
A few examples. 


Slide 41
The cost of doing business 
Taxes 

Two Tax Incentives: 

1. 
A tax credit for small businesses who 
remove access barriers from their facilities. 
[Small = 30 or fewer employees and lessthan $1 million in total revenues.] 
2. 
A tax deduction for businesses of all sizes 
that remove access barriers in their facilities 
or vehicles. 
• 
Can be used every year 
• 
May not be used for new construction 

The Cost of Doing Business 

By the Numbers 
Tax Credit 
Up to $5,000 [half of eligible expenses up to$10,250, with no credit for the first $250] 

Tax Deduction 
Up to $15,000 a year 

Small Business Can Use Jointly 
Spent $20,000 for architectural modifications. 
$5,000 tax credit, the remaining $15,000 as a tax
deduction. 



Slide 42
Questions? 
(Figure of head with question mark) 



End Slide show