Tuesday, May 10, 2016

disability - ADA - charging admission for personal care attendants of disabled persons

Anderson et al. v. The Franklin Institute – E.D. Pa. – May 6, 2016

Held:  FI’s policy of charging separate admission fees for the government-funded personal care attendants (PCA) of people with disabilities violated the Americans with Disabilities Act, 42 USC 12181 et seq., and corresponding regulations, 28 CFR 36.101 et seq.  FI’s policy effectively doubled the cost of admission for the class of disabled persons who need PCAs to help with aspects of daily living.

In 1990, Congress enacted the ADA “to remedy widespread discrimination against disabled individuals. In studying the need for such legislation, Congress found that ‘historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem.’ ” PGA Tour, Inc. v. Martin, 532 U.S. 661, 674–75 (2001). 11 Title III of the ADA and its implementing regulations prohibit “public accommodations,” including museums, theaters, stadiums, and other places “of exhibit entertainment,” from discriminating against people with disabilities. 42 U.S.C. § 12181(7)(C)&(H). Specifically, “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.” 42 U.S.C. § 12182(a).

Discrimination under the ADA includes failure to afford an individual or class of individuals the equal opportunity to participate in or benefit from a good, service, or facility as able-bodied individuals on the basis of disability. 42 U.S.C. § 12182(b)(1)(A)(ii); see generally 42 U.S.C. § 12101. An entity can also be held liable for ADA discrimination for failing to reasonably modify its policies and practices to accommodate individuals with disabilities absent proof “that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations.” 42 U.S.C. § 12182(b)(2)(A)(ii). In addition, a “public accommodation may not impose a surcharge on [disabled persons] to cover the costs of measures, such as the provision of auxiliary aids, barrier removal, alternatives to barrier removal, and reasonable modifications in policies, practices, or procedures, that are required to provide [those individuals] with the nondiscriminatory treatment required by the Act or this part.” 28 C.F.R. § 36.301(c).

The above statutory requirements and definitions have been condensed by the case law into a three part test: “[t]o state a claim of disability discrimination under Title III of the ADA, a plaintiff must show (1) discrimination on the basis of a disability; (2) in the full and equal enjoyment of goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation; (3) by the public accommodation's owner, lessor or operator.” See, e.g., Harty v. Burlington Coat Factory of Pennsylvania, L.L.C., No. 11-01923, 2011 WL 2415169, at *9 (E.D. Pa. June 16, 2011) (internal citations omitted); Dempsey v. Pistol Pete's Beef N Beer, LLC, No. 08-5454, 2009 WL 3584597, at *3 (D.N.J. Oct. 26, 2009).   The court held that that plaintiffs satisfied this test, concentrating its analysis on part two: the right to full and equal enjoyment of goods and services.

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