Americans with disabilities act open sores accommodating
It requires private businesses, as public accommodations, to modify their programs and facilities in the same fashion as demanded of governmental entities.27 The ADA prohibits discrimination based on disability, perceived disability, or association with a person with a disability.28 On the flip side of the same coin, the ADA also requires reasonable modification to accommodate individuals with disabilities.29 The exceptions are few30; the exemptions, limited.31 Titles II and III, on which this article focuses, may be enforced by the Department of Justice or through a private cause of action for injunctive, declaratory, and, in the case of Title II, monetary relief (as well as attorneys' fees, costs, and litigation expenses).32 Title II of the ADA generally was modeled after Section 504.33 One may collect damages through a private cause of action under Title II to the extent one may obtain damages under Section 504 in the circuit in which the action arises.34 In most circuits, damages are available, but only for intentional violations of Section 504,35 although, as this article points out in the following pages, "intentional" for disability actions may not be as strictly construed as "intentional" for §1983 actions. Department of Justice promulgated the Americans with Disability Act Accessibility Guidelines (ADAAG) for the purpose of implementing Title III.42 Although the ADA does not require that Title II entities use ADAAG, the courts and the Department of Justice generally apply ADAAG to Title II entities, reasoning that, when Title II requires a government entity to remove barriers in buildings that pre-date the ADA or to construct new buildings in compliance with the ADA, ADAAG provides appropriate standards.43 The ADA also contains an anti-retaliation proviso, protecting any individual making a charge, testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing under the ADA.44 A. Title III of the ADA, however, does not permit a plaintiff to recover damages in a private cause of action, only equitable relief.36 Disability "discrimination" differs from "discrimination in the constitutional sense" because the ADA and Section 504 contain their own definitions of discrimination.37 For example, discrimination may include a defendant's failure to make reasonable accommodations to the needs of a disabled person.38 In a sense, there are three theories of discrimination under the ADA and Section 504: (1) intentional discrimination, (2) discriminatory impact, and (3) a refusal to make a reasonable modification or accommodation.39 While the legal mandate requires reasonable accommodation, whether an accommodation is "reasonable" requires consideration of various factors, such as: (1) the size, facilities, and resources of an entity, (2) the nature and cost of the accommodation, (3) the extent to which the accommodation is effective in compensating for the person's disability, and (4) whether the accommodation would require a fundamental alteration in the nature of an entity's program.40 As such, whether an accommodation is reasonable is generally a question of fact, precluding resolution on summary judgment.41 This well-accepted legal proposition obviates the difficult summary judgment motions in §1983 practice. Greatly Diminished Immunities Because Title II ADA actions lie against state and local government entities, and not against individuals employed by those entities (although an individual's actions may cause liability on an agency theory),45 issues of qualified ("good faith") immunity do not arise,46 and thus neither does the interlocutory appeal problem.
Until recently, the law was unsettled as to the extent to which the ADA overcomes state sovereign immunity for Fourteenth Amendment purposes.47 However, in Board of Trustees of University of Alabama v.
Two years after Lane, the Supreme Court decided another sovereign immunity case involving Title II, United States v. 2003) (claim by student with cerebral palsy, confined to a wheelchair, that school was inaccessible). Victoria County, 302 F.3d 567, 575 (5th Cir.2002) (noting differences between constitutional claims and the ADA, including the fact that there is "no 'deliberate indifference' standard applicable to public entities" for purposes of the ADA or Section 504) (upholding 0,000 jury award to man, alleging that county violated ADA and Section 504 when deputy failed to take into account his serious hearing impairment during process of arresting him for driving while intoxicated and holding that evidence was sufficient to support jury's finding of intentional discrimination)..
Georgia, holding that a prisoner could maintain a damages action, alleging conditions of confinement violated Title II, declaring: While the Members of this Court have disagreed regarding the scope of Con¬gress's "prophylactic" enforcement powers under §5 of the Fourteenth Amendment ...
First, a court must identify the constitutional rights Congress sought to enforce when it enacted Title II. Apollo Metals, 307 F.3d 160, 170-71 (3d Cir.2002) ("Generally, the question of whether a proposed accommodation is reasonable is a question of fact") (Title I); Chisolm v. 2001) ("[g]enerally, the effectiveness of auxiliary aids and/or services is a question of fact precluding summary judgment") (reversing summary judgment in suit by hearing-impaired detainee against pretrial detainment facility and county court system); Kennedy v. Mich.1996) ("reasonableness of an accommodation under the ADA is a question of fact appropriate for resolution by the trier of fact") (denying prison's motion to dismiss ADA and Section 504 case by prisoner and his deaf fiancé to accommodate her disability with the TDD/relay system).42 See 42 U.
In Lane, the Supreme Court found that Title II sought to enforce the prohibition against irrational discrimination based on disability, but that, as applied to a case involving access to the courts, it also implicated other constitutional rights such as the First, Sixth, and Fourteenth Amendments.53 Next, courts must consider whether Congress identified a pattern of unconstitutional discrimination by the states against people with disabilities.54 Whereas in Garrett the Court found the record of unconstitutional employment discrimination on the basis of disability insufficient to support the broad remedies of Title I, in Lane, the high court found the evidence of discriminatory provision of public services ample under Title II.55 Finally, a court must consider whether the remedy provided by Title II is congruent and proportional to the violation. Dresser Rand Co., 193 F.3d 120, 122 (2d Cir.1999) ("the question of whether a proposed accommodation is reasonable is fact-specific and must be evaluated on a case-by-case basis"); Oconomowoc Residential Programs v.
Therefore, with respect to Title I, Congress did not validly abrogate the States' Eleventh Amendment immunity.