The Americans with Disabilities Act (ADA) prohibits discrimination on the basis of disability in employment, state and local government, public accommodations, commercial facilities, transportation, and telecommunications. To be protected by the ADA, one must have a disability or have a relationship or association with an individual with a disability. An individual with a disability is defined by the ADA as a person who has a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment.1  The ADA does not specifically name all of the impairments that are covered.

The ADA is divided into 5 titles that cover different areas: 1) Title I – Employment; 2) Title II – Public Services, which covers public entities and public transportation; 3) Title III – Public Accommodations, which includes commercial facilities; 4) Title IV – Telecommunications and 5) Title V – Miscellaneous. This chapter focuses primarily on Titles II and III.

• 142 U.S.C. § 12102(1).

Title II covers all activities of state and local governments regardless of the government entity's size or receipt of federal funding.1  Title II requires that state and local governments give people with disabilities an equal opportunity to benefit from all of their programs, services, and activities (e.g., public education, employment, transportation, recreation, health care, social services, courts, voting, and town meetings).

Title II may be enforced through private lawsuits in federal or state court; although state courts have jurisdiction to hear ADA claims, advocates typically bring these claims in federal court. Unlike Title I claims for employment discrimination, it is not necessary to file a complaint with any federal agency or to receive a "right-to-sue" letter before going to court

• 142 U.S.C. §§ 12131–12134.

Title III requires that state and local governments follow specific architectural standards in the new construction and alteration of their buildings.1  They also must relocate programs or otherwise provide access in inaccessible older buildings and communicate effectively with people who have hearing, vision, or speech disabilities. Public entities are not required to take actions that would result in undue financial and administrative burdens. They are required to make reasonable modifications to policies, practices, and procedures where necessary to avoid discrimination, unless they can demonstrate that doing so would fundamentally alter the nature of the service, program, or activity being provided.

There is no exhaustion requirement for Title III claims, and a private lawsuit may be brought to remedy the discrimination if advocacy is unsuccessful.

• 142 U.S.C. § 12181.

An advocate’s first step is to determine if the client has a disability under the framework of the ADA. The ADA has an expansive definition and guidance for disability, found at 28 C.F.R. §35.108. This definition “shall be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA.”1  The definition provides coverage for individuals under three rubrics.

First, an individual is protected by the ADA if the individual has “a physical or mental impairment that substantially limits one or more of the major life activities of the individual.”2  An impairment “substantially limits a major life activity” if an individual is unable to perform, or is significantly limited in the ability to perform, an activity compared to an “average person” in the general population.3  The threshold issue of whether an impairment “substantially limits” a major life activity should not demand extensive analysis.4  There are three factors used to determine whether an impairment substantially limits: 1) its nature and severity; 2) how long it will last or is expected to last; and 3) its permanent or longer-term impact or expected impact. For example, a person who is legally blind or who has low vision has an impairment that substantially limits the major life activity of seeing.

Second, an individual is protected if the individual has “a record of such an impairment.”5  This situation arises when a disability that is not open and obvious and is not readily identifiable by a person interacting with the individual. For example, an individual with autism may fit under this category; you may not be able to identify that the individual has autism, but the individual may have a diagnosis declared in medical records.

Third, an individual falls under the ADA if the individual is “regarded as having such an impairment.”6  This arises when people who interact with the individual believe that the individual has a disability and associate the individual with having such a disability, even in the absence of documentation. However, an individual is not regarded as having such an impairment if it may be demonstrated that the impairment is, objectively, both “transitory” and “minor”.7  Transitory is defined, for these purposes, as lasting or expecting to last six months or less.8

• 128 C.F.R. § 35.108(a)(2)(i).
• 228 C.F.R. § 35.108(a)(1)(i).
• 329 C.F.R. § 1630.2(j)(1)(ii).
• 429 C.F.R. § 1630.2(j)(1)(iii).
• 528 C.F.R. § 35.108(a)(1)(ii).
• 628 C.F.R. § 35.108(a)(1)(iii).
• 728 C.F.R. § 35.108(f)(2).
• 8Id.

Once you have determined that your client has a disability within the meaning of the ADA, the next step is to determine if your client is unable to access the building or service or is unable to meaningfully participate as a direct result of the disability. There must be a clear connection between the disability and the accommodation; otherwise, the accommodation is not a proper request under the ADA.

For instance, if an individual has hearing impairment but is requesting an accommodation for a proceeding to be held on the first floor because they do not like to use stairs, that is not an accommodation tied to the disability. However, if the individual has a hearing impairment and is unable to understand what is happening during a court proceeding without an ASL interpreter, the interpreter is an accommodation required by the ADA.

The key here is to understand the barrier your client faces. This is where a conversation with the client is most valuable. What does the client need? What does the client perceive as the barrier? Does the client have a visual or hearing impairment? Does the client have a service animal? Does the client have a mobility impairment? Does the client have a difficult time understanding if things are not explained in plain language? While the client may not know precisely what accommodation they need, they should be able to communicate the issues they face or problems they have. Talk to your client, listen to your client. Your job is to ensure the client is able to participate.

Once you have determined that your client has a disability under the ADA and is in need of an accommodation, the next question is whether the ADA requires the entity to provide the accommodation.1  The ADA might require an entity to provide and pay for an ASL interpreter, but it might not require the entity to install a ramp if the building is historical and exempt.

• 1See Section 5.1.3.

Ensuring that necessary accommodations are available is particularly important for an individual in the criminal context. The ADA requires all entities in the criminal justice system (including attorneys, courts, jails, juvenile justice entities, police, prisons, prosecutors, and public defenders) to avoid discriminating against people with disabilities.1  This includes making reasonable accommodations to policies, practices, and procedures as well as communicating effectively with people with disabilities.2  The ADA further requires actors in the criminal justice system to avoid unnecessary criminal justice involvement for people with disabilities.3  The obligations placed on the criminal justice system by the ADA have been upheld in cases around the country, further emphasizing the importance and necessity for people with disabilities to be treated equally and have equal opportunity to access the courts.4

If an individual is unable to meaningfully participate in a criminal proceeding because a needed accommodation is not provided, it could be a violation of due process. A defendant in a criminal case must be able to participate in the defense, which necessarily requires an understanding of the proceedings at all stages.

As attorneys, we also have a moral and ethical obligation to ensure that individuals with disabilities are not unfairly punished for having a disability. This is most prevalent in the criminal justice system when individuals with mental illness are arrested for actions that may stem from their disability rather than from an intentional criminal act. For instance, an individual with a developmental or intellectual disability, such as autism, may have a behavioral episode in a public place and be arrested for assault or for causing a disturbance. The individual may not have been acting with criminal intent, but rather may have been experiencing uncontrollable behaviors related to the disability. These individuals should not be in the criminal justice system and penalized for having a disability, and attorneys should advocate for alternative paths to provide these individuals with assistance.

These circumstances are when wearing multiple hats is most important. We need to recognize when an individual would benefit from mental health treatment or intervention instead of incarceration and advocate for the individual’s best interests.

• 1 The Department of Justice’s Civil Rights Division has an excellent guide to the interaction of the ADA and the criminal justice system. This guide includes technical assistance, documents related to DOJ enforcement activities, and DOJ position statements. Civil Rights Div., U.S. Dep’t of Just., Information and Technical Assistance on the Americans with Disabilities Act, ADA.gov.
• 2See Disability Rts. Section, U.S. Dep’t of Justice, ADA Update: A Primer for State & Local Governments (2015).
• 3See Civ. Rts. Div., U.S. Dep’t of Just., Examples & Resources to Support Criminal Justice Entities in Compliance with Title II of the Americans with Disabilities Act (2017).
• 4See id.

In criminal court, the prosecutor or the court is responsible for ensuring that an accommodation is provided to the defendant. However, it is the responsibility of the defendant or the defense attorney to notify the prosecutor or the court that an accommodation is necessary. The court or prosecutor may not realize an accommodation is needed, but once they are informed of that fact, it is their responsibility and financial obligation to provide the accommodation. The process may vary depending on the particular court, so it is important to ask the clerk whom to contact to request an accommodation.

If the client requires a physical accommodation to access either the building the courtroom, the attorney should contact the clerk to determine what accommodations may be already in place or what options the court may already have. For instance, there may be a portable ramp available that can be put into place so the individual can gain access to the building. If a courtroom is inaccessible due to stairs or other obstacles, there may be a different courtroom that can be used or an elevator.

An accommodation request is not limited to an enumerated list of things or services, but rather is tied to the needs of the client’s disability and what could be provided to enable participation in the court proceeding. It’s important to remember that there must be a nexus between the client’s disability and the accommodation requested in order for the accommodation to be required by the ADA.

For physical access issues, a requested accommodation could be as simple as permitting the client to provide testimony from counsel table rather than the witness box because stairs may be a barrier. Since the COVID-19 pandemic has pushed courts into using technology, an accommodation request could be to allow the individual to testify remotely via videoconferencing technology if physical barriers to the building prevent in-person testimony. For example, if there are only courtrooms on the second floor and the elevator is broken, but the defendant uses a wheelchair, requesting participation via Zoom would be a reasonable accommodation.

For clients with hearing impairments, you can request that the court provide an ASL interpreter. One important thing to keep in mind is that the interpreter provided by the court is an extension of the court and will not be able to interpret confidential communications between an attorney and the client. You will need to make a plan for confidential communications with your client; this could include communicating in writing or hiring your own interpreter solely for confidential communication purposes.

For clients who have service animals, you will need to inform the clerk that the client has a service animal that will be present during court proceedings. You and the client should keep in mind that if the animal is not well-behaved or housetrained, the animal could be barred from being in the courtroom even if it does provide a service.1

• 1See Section 6.

Any accommodation requests for physical access to the building or the courtroom need to be made to the clerk of court. The clerk will be able to direct you to another contact if necessary. It may also be a good idea to notify opposing counsel of the accommodation request, particularly if it may impact presentation of evidence. For instance, a witness with a vision impairment may not be able read a document while on the stand.

An accommodation request for an interpreter should be addressed to the clerk of court or to the prosecutor, depending on the procedure used in that court. The clerk of court is typically the best place to start; if the prosecutor is responsible for obtaining an interpreter, the clerk will be able to let you know.

It is typically not required that requests for accommodations to be made in writing, although depending on how tense interactions with opposing counsel are, having the request in writing may be beneficial. The clerk may ask for the request to be provided in writing as well.

The request should include the client’s name, the specific accommodation being requested, and the reason for the request. As an example, you could request a ramp into the building be provided to allow your client, Joe Smith, to enter the building in his wheelchair. Or you may request that Joe Smith be permitted to attend the hearing via Zoom due to the building lacking accessible entrances to allow him to be present in his wheelchair.

Unlike in a criminal case, which may threaten an individual’s liberty, in a civil matter the responsibility to provide an accommodation falls on the individual or the attorney. Just as the court is not required to provide an individual with an attorney in a civil matter, the court is also not required to provide or pay for an accommodation, such as an ASL interpreter. The individual or the individual’s attorney is responsible for ensuring an accommodation is in place.

An important caveat is a physical barrier to accessing the building. The courthouse is required by Title III of the ADA to be accessible regardless who needs to access the building. If the client or a witness needs an accommodation to be in the building or in the courtroom, the attorney should coordinate with the clerk to ensure the accommodation is in place.

As with a criminal case, the accommodation requested is not limited to an enumerated list and instead depends upon the needs of the individual. The types of accommodations that might be available are the same as those in criminal court.1

• 1On the accommodations available in criminal court, see Section 5.1.3.

Because the responsibility for obtaining an accommodation falls on the individual with a disability or that individual’s attorney, you will need to coordinate the services or accommodation. The exception is the physical accessibility to the building or any physical barriers in the courtroom itself.1  If the client requires an interpreter, for instance, the attorney would need to contract with an interpreter to be present and available. You should also notify the clerk that an interpreter will be present, so that the court is aware.

• 1See Section 5.2.1.

A service animal is an animal that is trained to provide a service to assist an individual with a disability. Under the ADA, a service animal means any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.1  The work or tasks performed by a service animal must be directly related to the individual's disability. Tasks may include, but are not limited to, guiding individuals with impaired vision, alerting individuals with impaired hearing to sounds, pulling a wheelchair, retrieving dropped items, turning switches on or off, assisting during a seizure, reminding a person to take medication, pressing an elevator button, or providing physical support and assistance with balance and stability. A crime deterrent provided by the animal’s presence or the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of meeting the definition of a service animal.2

Many people with disabilities use a service animal in order to fully participate in everyday life. Dogs can be trained to perform many important tasks to assist people with disabilities. The ADA requires state and local government agencies, businesses, and non-profit organizations  that provide goods or services to the public to make “reasonable modifications” in their policies, practices, or procedures when necessary to accommodate people with disabilities.3  This includes courts and other state buildings. The service animal rules fall under this general principle. Accordingly, entities that have a “no pets” policy generally must modify the policy to allow service animals into their facilities.

• 128 C.F.R. § 35.104; see Civ. Rts. Div., U.S. Dep’t of Just., Frequently Asked Questions About Service Animals and the ADA (July 20, 2015).
• 228 C.F.R. § 35.104.
• 3See Civ. Rts. Div., U.S. Dep’t of Just., Frequently Asked Questions About Service Animals and the ADA (July 20, 2015).

Examples of animals that fit the ADA’s definition of “service animal” because they have been specifically trained to perform a task for the person with a disability:

• Guide Dog or Seeing Eye® Dog is a trained dog that serves as a travel tool for persons who have severe visual impairments or are blind.
• Hearing or Signal Dog is a dog that has been trained to alert a person who has a significant hearing loss or is deaf when a sound occurs, such as a knock on the door.
• Psychiatric Service Dog is a dog that has been trained to perform tasks that assist individuals with disabilities to detect the onset of psychiatric episodes and lessen their effects. Tasks performed by psychiatric service animals may include reminding the handler to take medicine, providing safety checks or room searches, or turning on lights for persons with Post Traumatic Stress Disorder, interrupting self-mutilation by persons with dissociative identity disorders, and keeping disoriented individuals from danger.
• SSigDOG (sensory signal dogs or social signal dog) is a dog trained to assist a person with autism. The dog alerts the handler to distracting repetitive movements common among those with autism, allowing the person to stop the movement (e.g., hand flapping).
• Seizure Response Dog is a dog trained to assist a person with a seizure disorder. How the dog serves the person depends on the person’s needs. The dog may stand guard over the person during a seizure or the dog may go for help. A few dogs have learned to predict a seizure and warn the person in advance to sit down or move to a safe place.

In addition to the provisions about service dogs, the Department of Justice’s revised ADA regulations allow for miniature horses that have been individually trained to do work or perform tasks for people with disabilities, where reasonable.1  Miniature horses generally range in height from 24 inches to 34 inches measured to the shoulders and generally weigh between 70 and 100 pounds. There are four assessment factors to assist entities in determining whether miniature horses can be accommodated in their facility: (1) whether the miniature horse is housebroken; (2) whether the miniature horse is under the owner’s control; (3) whether the facility can accommodate the miniature horse’s type, size, and weight; and (4) whether the miniature horse’s presence will not compromise legitimate safety requirements necessary for safe operation of the facility.

• 1For a discussion of miniature horses as service animals, see Civ. Rts. Div., U.S. Dep’t of Just., ADA Requirements: Service Animals, (last updated Feb. 24, 2020).

An individual with a service animal is not required to register the animal or have paperwork proving that the animal provides a service. A service animal is not required to wear a vest or other identifying items signaling that it is a service animal. Only two questions may be asked of an animal handler:

(1) Is this a service animal required because of a disability?

(2) What work or tasks is the animal trained to perform?

The ADA prohibits further inquiry into either the individual’s disability or other specifics regarding the animal that would necessarily reveal the nature or extent of the individual’s disability. The reason the law limits questioning to only these is to avoid discrimination on the basis of a disability and to avoid inquiries into protected information, such as medical conditions.