by Melanie Brunson
Just after the holidays, there was a lot of discussion on the ACB listserv regarding the right of blind and visually impaired shoppers to receive assistance with their shopping from store personnel. The specific question that arose concerned the legal obligations of merchants to provide assistance. The discussion that followed convinced me that folks might be interested in some information about what the law has to say on this subject. Since this magazine reaches a broader audience than the ACB listserv, I decided to provide this information here. I hope it will be of use to many of you as you go about your business in the new year.
The applicable federal law is the Americans with Disabilities Act (ADA). Title III of the ADA (42 USC 12182) prohibits anyone who owns, leases, or operates a place of public accommodation from discriminating against any individual based on that individual's disability. The term public accommodation includes: sales establishments such as grocery stores, clothing stores, hardware stores, shopping centers and bakeries; most places of lodging such as hotels, motels and inns; establishments serving food or drink such as restaurants and bars; places of entertainment or exhibition such as motion picture houses, theaters, concert halls, and stadiums; places of public gathering such as convention centers, auditoriums and lecture halls; service establishments such as laundromats, banks, barber shops, beauty shops, travel services, gas stations, pharmacies, hospitals, offices of accountants, lawyers, insurance agents and health care professionals; certain public transit facilities such as terminals, stations and depots; places of education including nursery, elementary, secondary, undergraduate and postgraduate private schools; places of recreation such as parks, zoos and amusement parks; places where social services are provided, such as day care centers, senior citizen centers, homeless shelters, food banks and adoption agencies; places for exercise such as bowling alleys, health spas and golf courses; and places of public display or collection such as libraries, galleries and museums.
The ADA describes several types of conduct which are considered discriminatory and are therefore prohibited. Obviously, the most direct form of such conduct is to deny an individual or class of individuals, the opportunity to participate in or benefit from the goods, services, facilities, privileges or accommodations normally offered to the public by one of these establishments, based on the disability of an individual member of the public, or a class of such individuals. According to the ADA, it is also discriminatory to provide an individual, or class of individuals who have disabilities with goods or services that are not equal to, or are different from, the services provided to other non-disabled individuals, unless different goods or services are in fact necessary in order to insure that people who have disabilities will receive goods and services that are as effective as those provided to other members of the public. It is also discriminatory to fail to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to insure that people with disabilities will be able to gain access to the proffered goods, services, facilities etc.
The only exception to this rule involves an instance where the entity can demonstrate that making such modifications would "fundamentally alter the nature of" the goods, services, facilities etc. Finally, it is considered discrimination for an entity covered by this section to fail to take steps to ensure that no individual with a disability is excluded, denied services, segregated, or otherwise treated differently than other individuals because of the absence of auxiliary aids and services which would otherwise enable the person with a disability to access those goods and services. Auxiliary aids and services are defined elsewhere in the ADA as including: "qualified readers, taped texts, or other effective methods of making visually delivered materials available to individuals with visual impairments." Here again, an entity which fails to take steps to accommodate an individual under these circumstances has only one defense. Such failure is not discriminatory if the entity can demonstrate that taking such steps would fundamentally alter the nature of the goods, services, facilities, or accommodations being offered, or would result in an undue burden on the entity. Note that the statute does not say burden, but an "undue" burden. That means there must be more than inconvenience involved. There must be a degree of burden that makes it highly problematic for the entity to accommodate the needs of the person with a disability seeking accommodation.
So, what does all this mean when you want to go shopping, or visit a doctor, or make a bank deposit? Well, first of all, these are covered entities and if you are blind or visually impaired, you are one of the individuals who is protected against discrimination by these entities. The ADA says they cannot refuse to serve you on the basis of your disability. Further, they cannot give you inferior service, and they cannot treat you differently than they do other customers or clients, except in those instances where some different treatment is necessary to ensure that you have access to the same goods or services they provide to other customers. A good example of this would be the provision of an assistant to go through a store with you and help you select items off the shelf. Most stores would not do that ordinarily, but as an accommodation necessitated by the fact that they do not have another way of letting you know what is available and where those items are located, this is an appropriate means by which they can ensure that you have access to their goods and the ability to effectively transact your business with them. In fact, the provisions of the ADA which I summarized above would require that a store provide this kind of assistance.
The ADA does not discuss whether it would be legal for a business to ask a customer to call ahead and arrange assistance in advance, or to come at certain hours of the day, or to bring an assistant with them to an appointment. However, it does say that businesses and other places of public accommodation are required to make their goods and services available to persons with disabilities, and to take such steps as may be necessary to ensure that such individuals are not discriminated against, unless to do so would "fundamentally alter the nature of" the goods or services provided, or would be an "undue burden." This seems to indicate that requiring an individual to make such arrangements with the business would in fact be a violation of the law.
Requesting it may arguably be warranted in some circumstances, particularly in the case of a small business with a very limited number of personnel on the premises. However, my reading of the ADA leads me to believe that a blanket policy requiring all customers or clients of an entity to make such arrangements would not pass the "undue burden" test set forth in the ADA. Rather, it would be considered prohibited discrimination. In any case, Title III of the ADA indicates that no establishment which offers goods or services to the public can legally refuse to provide goods or services to people with disabilities, on the grounds that they simply don't have time to provide such assistance or other accommodations. Anyone who experiences this type of blatant refusal to serve customers with disabilities should contact the U.S. Department of Justice and file a complaint against the business establishment. This is not a complicated process. All you need to do to file a complaint is to send a letter to them describing what happened to you, giving the name and location of the business, and the names of any employees or other individuals you spoke to if you are able to get them. The Justice Department is supposed to investigate these complaints and help resolve them. They have two addresses to which you can send these complaints. The first is: U.S. Dept. of Justice, Office of Civil Rights, Disability Rights Section, PO Box 66738, Washington, DC 20035-6738. Another is: US Department of Justice, Disability Rights Section, 950 Pennsylvania Ave. NW, New York Avenue Building, Room 4023, Washington, DC 20530.
At this time, much of the department's mail is being re- routed due to the recent anthrax scare in Washington, so if you have occasion to write to them within the next several months, I would suggest you send your letter to both addresses. You might also send us a copy at the ACB national office, so that we can contact them as well and let them know we are aware of your complaint.
In addition to providing a means by which we can help to hold those charged with enforcing the ADA accountable for doing their job, this kind of information is useful to us as we work to try to educate the public about the kinds of discrimination blind and visually impaired people face as they live their daily lives.