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.