J & N REALTY, INC.

Advanced Fair Housing  

Issues in Homeowners and Condominium Associations 

State Laws  

The Fair Employment and Housing Act and the Unruh Civil Rights Act  

The California Legislature has declared that discrimination in housing is against the public policy of the State of California.  Moreover, the Legislature has recognized that your right to seek, obtain, and hold housing without discrimination on any of the bases specified in the Fair Employment and Housing Act or on any other basis prohibited by the Unruh Civil Rights Act is a civil right.  

The Fair Employment and Housing Act (FEHA), Government Code section 12900 et seq., specifically prohibits housing discrimination on the basis of race, color, religion, sex, sexual orientation, marital status, national origin, ancestry, familial status, disability, or source of income.  The Unruh Civil Rights Act, Civil Code section 51 (hereafter the Unruh Act or the Act) prohibits discrimination in "all business establishments of every kind whatsoever."  This provision has been interpreted to include businesses and persons engaged in the sale or rental of housing accommodations.   

While the Act specifically prohibits only discrimination on the basis of race, color, religion, sex, national origin, ancestry, or disability, its language, unlike the FEHA's, has been judicially and statutorily construed to apply to arbitrary discrimination based on personal traits, beliefs, or characteristics similar to those specifically listed.  The Act, for example, has been held to prohibit discrimination against families with children and against persons based upon their sexual orientation or their age.  Accordingly, the Act does not apply only to those bases which are specifically listed, but may also apply to other, unlisted but similar bases, as well.  

In addition, the Unruh Act, like the FEHA, prohibits discrimination against persons who are perceived to be a member of a protected class or who associate with a member of, or with a person perceived to be a member of, a protected class.  

The FEHA also prohibits harassment of persons applying for or occupying housing accommodations on any of the bases specified in the Act.   

The FEHA and the Unruh Civil Rights Act can be enforced against any owner, lessor, sublessor, assignor, managing agent, real estate broker, salesperson, or any person having any legal or equitable right of ownership or possession or the right to rent a housing accommodation.   

The provisions of the FEHA are generally applicable to any real property that is occupied or intended to be occupied as a home, residence, or sleeping place by one or more families.  Only two categories of housing are expressly exempted.  First, the FEHA does not apply to renting a portion of a single-family, owner-occupied house to one person.  

Second, religious organizations which own or operate housing accommodations for non-commercial purposes, either directly or through a related non-profit institution or organization, may give a preference to persons of the same religion in the sale, rental, or occupancy of such accommodations.   

The Unruh Act covers any form of housing which can be termed a "business establishment.”  This term has been liberally construed by the courts to include virtually every type of housing accommodation.  For example, the Act has been held to apply to operators of motels and hotels; real estate brokers and agents and others engaged in the sale or rental of real property; owners of triplexes, duplexes, non-owner occupied single-family dwellings, and publicly-assisted housing projects; operators of mobile home parks; and condominium homeowners' associations.  

The following is a partial listing of housing practices prohibited by the FEHA and the Unruh Act.  It is unlawful:  

to make any inquiry concerning the race, color, religion, sex, national origin, ancestry, or other protected characteristic of the person seeking to rent, purchase, or lease any housing accommodation;  

to place an advertisement regarding the rental or sale of any housing accommodation which indicates any preference or limitation based upon race, color, religion, sex, national origin, ancestry, or any other characteristic protected by the FEHA or the Unruh Act;  

To discriminate against any loan applicant for a loan to purchase or construct housing on a prohibited basis;  

To harass, evict, or otherwise discriminate against any person who has filed a complaint with the DFEH or who has testified or assisted in any action brought pursuant to the FEHA;  

To aid, abet, incite, compel, or coerce the doing of any of the foregoing illegal practices;  

To refuse to sell, rent, or lease a housing accommodation on any prohibited basis;  

To refuse to negotiate for the sale, rental, or lease of a housing accommodation on any prohibited basis;  

To misrepresent the availability of a housing accommodation because the prospective buyer or lessee is a member of a class protected by either the FEHA or Unruh Act;  

To provide inferior terms, conditions, privileges, facilities, or services in connection with the sale or lease of a housing accommodation because the buyer or lessee is a member of any class protected by the Unruh Act or the FEHA;  

To cancel or terminate a sale or rental agreement because a person is a member of a class protected by either the FEHA or Unruh Act;  

To provide segregated housing accommodations.  

To harass someone in connection with housing accommodations.  

Procedures to Follow and Remedies Available  

You can enforce your rights under the FEHA or Unruh Act either by filing a claim with the DFEH or by filing a private lawsuit.  By filing a complaint with the DFEH, you will be initiating an administrative process in essentially the same way you would when filing a complaint with that department for employment discrimination.  Whether your housing claim is based upon the FEHA or the Unruh Act, you must file your complaint with the DFEH within one year after the alleged discriminatory act.  Therefore, you should file your complaint immediately.  

Whether your claim is based upon the Unruh Act or the FEHA, the DFEH will conduct an investigation to determine its validity and attempt to settle the matter.  If it is unable to reach a settlement, and there is reasonable cause to believe that a violation has occurred or is about to occur, the DFEH will issue an accusation requiring the person or entity who violated your rights to answer your charges at an administrative hearing or, if either you or the party charged so elect, at a civil trial.   

In order to bring your own FEHA or Unruh Act lawsuit, however, you do not have to file a complaint with the DFEH at all.  You should note that if you do file a private action, the DFEH will not act on any complaint you may have filed.  

Remedies available from the Fair Employment and Housing Commission (FEHC) in administrative actions for housing discrimination include: orders requiring the sale or rental of the housing accommodation if it is still available; payment of actual damages; and payment of a civil penalty of up to $50,000.  Remedies available in private actions brought to enforce your rights depend upon whether your claim is brought pursuant to the Unruh Act or the FEHA.  Remedies available in private Unruh Act suits include actual damages, a penalty of up to three times the amount of actual damages, injunctive relief, and attorney's fees.  Remedies available in private FEHA actions, or in a civil trial elected in lieu of an administrative hearing before the FEHC, include actual, compensatory, and punitive damages, injunctive relief, and attorney's fees if you are represented by private counsel rather than by the DFEH.   

Finally, it should be noted that under certain circumstances, the Attorney General, or your local district or city attorney, may bring actions to correct housing violations under the FEHA and/or the Unruh Civil Rights Act.  While FEHA and Unruh Act housing violations ordinarily should be reported to the DFEH, if there is reasonable cause to believe that a person or group is engaged in a pattern or practice of violating the housing rights protected by the Unruh Act, you should report such activity to the Attorney General's Public Inquiry Unit or to your local district or city attorney.  You can write the Public Inquiry Unit at the number and address provided at the beginning of this pamphlet.  

Miscellaneous State Statutes Prohibiting Discrimination in Housing  

These additional state statutory references also concern unlawful housing discrimination.  

1. Civil Code sections 51.2 through 51.4, and 51.10 through 51.12 recognize the need for specially designed accessible housing for senior citizens, and establish age limitations and other qualifications for permissible senior citizen housing developments.  

2. Civil Code section 53 prohibits discriminatory provisions in written instruments which attempt to forbid or restrict the conveyance, encumbrance, leasing, or mortgaging of real property to any person on the basis of sex, race, color, religion, ancestry, national origin, or disability or which attempt to limit the use or occupation of real property by any person on such bases.  

3. Civil Code section 51.9 prohibits, among other things, the sexual harassment of a tenant by a landlord or property manager.  

4. Civil Code section 54.1 subdivisions (a)(6)(A), (B) and (C)(i) declare that blind persons, other visually impaired persons, deaf persons, and other disabled persons are entitled to full and equal access to all housing accommodations offered for rent, lease, or compensation, for both themselves and any guide, signal, or service dog whose services they use.  

5. Civil Code sections 782 and 782.5 void discriminatory provisions in deeds and other written instruments relating to title to real property which purport to restrict the right of any person to sell, buy, lease, rent, use, or occupy such property on the basis of race, color, nationality, or ethnicity.  

6. Government Code section 12956.1 provides that a county recorder, title insurance company, escrow company, real estate broker, real estate agent, or association that provides a copy of a real estate document to any person shall place a cover page or stamp on the first page of the document stating, in specified language, in at least 14-point boldface type, that any unlawful restrictive covenant contained in the document is void and may be removed, and that lawful restrictions on age of occupants in senior housing shall not be construed as restrictions based on familial status.  

7. Government Code section 12956.1 , subdivision (c), provides that any person who holds an ownership interest in property that he or she believes is the subject of a restrictive covenant may file an application with the DFEH requesting a determination of whether the restrictive covenant violates the fair housing laws and is void.  The applicant may strike the void restrictive covenant identified by the department.  

8. Health and Safety Code section 33050 is a legislative declaration of policy against discrimination in the undertaking of community redevelopment projects based on race, color, religion, sex, marital status, national origin, or ancestry.  

9. Health and Safety Code section 33769 requires that any residence constructed with funds obtained through, or with the assistance of, a redevelopment agency be made available without regard to race, color, religion, national origin, or ancestry.  

10. Health and Safety Code section 37923 requires that residences acquired, constructed, or rehabilitated with community development funds be open to all without discrimination on the basis of race, color, religion, national origin, or ancestry.  

Federal Laws  

The Federal Fair Housing Act and 42 U.S.C. § 1982 Title VIII of the Civil Rights Act of 1968, the Federal Fair Housing Act (FFHA) (42 U.S.C. § 3601 et seq.), also reaffirms and protects your rights to fair housing.  The FFHA prohibits discrimination in the selling or rental of housing accommodations on the basis of race, color, religion, sex, familial status (families with children), handicap, or national origin.  The FFHA applies to most dwellings, private or public, except for owner-occupied dwellings with four units or less.  For example, the FFHA is applicable to all dwellings owned and operated by the federal government and dwellings financed in whole or in part through loans or grants made by the federal government or secured by the credit of the federal government. Religious institutions operating non-commercial housing may limit the sale or rental of such housing to persons of the same religion, however, and housing specifically designed for older persons is also permitted.  

Additionally, the FFHA prohibits discrimination by financial institutions in the making of commercial real estate loans, and prohibits anyone from discriminating in the provision of real estate brokerage or appraisal services.   

The authority and responsibility for administering the provisions of the FFHA lies with the United States Secretary of Housing and Urban Development.  For more information concerning your rights and remedies under the FFHA, you should contact your local office of the Department of Housing and Urban Development (HUD).  You should note that if you believe that you have a claim under the FFHA, you must file a written complaint within one year after the alleged discriminatory act occurred or terminated, if you would like HUD's assistance in resolving the claim.  HUD will investigate your complaint, attempt to resolve it by conciliation, and, if necessary, proceed to have the matter heard either in court or in an administrative hearing.  After an administrative hearing, actual damages and injunctive relief may be awarded as well as a civil penalty of up to $50,000.   

Alternatively, you may also file an action directly in court, without first filing with HUD.  Any such court action must be filed within two years after the alleged discriminatory act.  If you prevail, you may recover actual and punitive damages, injunctive relief, and reasonable attorney's fees.   

In addition to the FFHA, 42 U.S.C. § 1982 also prohibits discrimination in the area of housing.  Section 1982 states: "All citizens of the United States shall have the same right, in every state and territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.”  Thus, section 1982 bars all racial discrimination, private as well as public, in the sale or rental of property.   

Although section 1982 and the FFHA share the same goals, the two federal remedies do differ in a few significant respects.  First, section 1982 only prohibits discrimination based upon color or race, whereas the FFHA applies more broadly.  Second, section 1982 is enforceable only through private action, while the FFHA establishes an administrative scheme.  Lastly, while section 1982 is generally limited to discrimination in the sale or rental of property, the FFHA extends to other related areas, such as discrimination in the provision of brokerage services.  A section 1982 action, like a 42 U.S.C. § 1981 claim, can be brought in either state or federal court, and you do not need to file an FFHA claim before you file a section 1982 court action.   

Fair Housing  

You Are Protected Under California Law!  

Laws enforced by the Department of Fair Employment and Housing (DFEH) protect you from illegal discrimination and harass­ment in housing based on  

• Race  

• Color  

• Religion  

• Sex (gender)  

• Sexual orientation  

• Marital status  

• National origin (including language use restrictions)  

• Ancestry  

• Familial status (households with children under age 18)  

• Source of income  

• Disability (mental and physical, including HIV and AIDS)  

• Medical condition (cancer/genetic characteristics)  

• Age  

The Department of Fair Employment and Housing  

• Enforces the Fair Employment and Housing Act (FEHA), the Ralph Civil Rights Act, and the Unruh Civil Rights Act  

• Investigates harassment, discrimination, and hate violence complaints  

• Helps landlords and tenants resolve complaints involving alleged violations of the laws enforced by DFEH  

• Prosecutes violations of the laws enforced by DFEH  

• Educates Californians about the laws against discrimination, harassment, and hate violence  

Common violations of the FEHA, based on the categories listed above, include the following:  

• Refusal to rent, lease, or sell housing  

• Sexual harassment involving unwanted sexual advances or requiring sexual favors for housing rights or privileges  

• Discriminatory policies, practices, terms, or conditions that result in unequal access to housing or housing-related services  

• Creating property documents, such as deeds and CC&Rs, that contain restrictive covenants limiting sale, rental, or use  

• Denial of a home loan or homeowner’s insurance  

• Failure to provide reasonable accommo­dation in housing rules, policies, practices, or procedures where necessary to accommodate a disability  

• Refusal to permit reasonable modification, at the tenant’s expense, when necessary to accommodate a disability  

It is also illegal for cities, counties, or other local government agencies to make zoning or land-use decisions or policies that unlawfully discriminate against you based on the categories listed above.  

Filing a Complaint  

If you believe you have experienced illegal discrimination or harassment, you can explore filing a complaint with DFEH by taking the following steps within one year of the incident:  

• Contact us in writing or at our toll-free number (800) 233-3212  

• Provide specific facts about the incident  

• Provide copies of documents that support the charges in your complaint  

• Keep records and documents about the complaint, such as rent receipts, applications, and other potential proof of discrimination  

If your complaint is accepted, DFEH will conduct an impartial investigation.  DFEH is a neutral fact-finder and does not represent you or the parties named in your complaint.  Our role is to deter­mine if the law has been violated.  If possible, we try to assist both parties to resolve the complaint.  Examples of resolution could include:  

• Making available previously denied housing  

• Compensation for losses and emotional distress  

• Training and policy changes to prevent future discrimination  

• Other actions to eliminate the effects of discrimination  

If DFEH is unable to resolve the complaint, and there is evidence that indicates a violation of the law, the matter may be litigated by the Depart­ment before the Fair Employment and Housing Commission or in civil court.  

The Unruh Civil Rights Act provides protection from discrimination by all business establishments in California.  

Complaints must be filed within one year from the last act of discrimination.  DFEH will conduct an impartial investigation.  

The Department is not an advocate for either the person complaining or the person complained against.  DFEH represents the state.  DFEH will, if possible, try to assist both parties to resolve the complaint.  If a voluntary settlement cannot be reached, and there is sufficient evidence to establish a violation of the law, DFEH may issue an accusation and litigate the case before the Fair Employment and Housing Commission or in civil court.  

This law provides for a variety of remedies that may include the following:  

• Out-of-pocket expenses  

• Cease and desist orders  

• Damages for emotional distress  

• Exemplary damages  

Court-ordered damages may include a maximum of three times the amount of the complainant’s actual damages.  

In accordance with the California Government Code and ADA requirements, this publication can be made available in Braille, large print, computer disk, or tape cassette as a disability-related reasonable accommodation for an individual with a disability.  To discuss how to receive a copy of this publication in an alternative format, please contact DFEH at the numbers above.  

Public Access Discrimination and Civil Rights  

The Unruh Civil Rights Act provides protec­tion from discrimination by all business establishments in California, including housing and public accommodations.  The term “business establishments” may include govern­mental and public entities as well.  

The Department of Fair Employment and Housing (DFEH) enforces these laws by  

• Investigating harassment and discrimi­nation complaints;  

• Assisting involved parties to voluntarily resolve complaints;  

• Prosecuting violations of the law; and  

• Educating Californians about the laws prohibiting harassment and discrimi­nation by providing written materials and participating in seminars and conferences.  

Protections Under the Law  

The mission of the Department of Fair Employment and Housing is to protect the people of California from unlawful discrimination in employment, housing, and public accommodations, and from the perpetration of acts of hate violence.  

The language of the Unruh Civil Rights Act specifically outlaws discrimination in housing and public accommodations based on sex, race, color, religion, ancestry, national origin, mental or physical disability, age, or medical condition.  However, the California Supreme Court has held that protections under the Unruh Act are not necessarily restricted to these characteristics.  The Act is meant to cover all arbitrary and intentional discrimination by a business establishment on the basis of personal characteristics similar to those listed above.  

The law also protects the rights of individuals with disabilities to use streets, highways, and other public places; public conveyances; places of public accommodation, amuse­ment or resort, and housing accommoda­tions; and guide, signal, or service animals or alternative accommodations for persons with disabilities.  

The law provides a clear distinction between the rights of a business to refuse service based on conduct as opposed to personal characteristics.  The misconduct or disrup­tive behavior of particular individuals may be grounds for refusing to do business with them or denying them services.  

Senior Housing  

The Unruh Civil Rights Act also contains provisions regulating the establishment of specialized housing designed to meet the physical and/or social needs of senior citizens.  Housing that meets these requirements is exempt from the familial status and age provisions of the Fair Employment and Housing Act and may, therefore, legally exclude households with children.  Similar provisions are provided for senior citizen mobile home parks under federal fair housing laws.  

Businesses Covered Under the Law  

This law requires “Full and equal accommoda­tions, advantages, facilities, privileges or services in all business establishments.”  This includes, but is not limited to, the following places:  

• Hotels and motels  

• Nonprofit organizations that have a business purpose or are a public accommodation  

• Restaurants  

• Theaters  

• Hospitals  

• Barber shops and beauty salons  

• Housing accommodations  

• Public agencies  

• Retail establishments  

Examples of Unruh Act Violations  

The following examples represent potential violations of the Unruh Civil Rights Act.  Other situations may also qualify as Unruh Act viola­tions depending on the specific circumstances.  

• A hotel charges a $100 service fee only to guests of a certain racial group but not to other guests of the hotel.  

• A doctor refuses to treat a patient who has been diagnosed as HIV positive.  

• A same-sex couple is denied a table at a restaurant even though there are vacant tables available and other customers are seated immediately.  

• A visually impaired individual is told his service animal is not allowed in a store.  

Filing a Complaint  

If you believe you are a victim of illegal discrimi­nation, you can file a complaint with DFEH by following these steps:  

• Contact DFEH by calling the toll-free number at (800) 884-1684 to schedule an appointment.  

• Be prepared to present specific facts about the alleged harassment or discrimination.  

• Provide copies of documents that support the charges in the complaint.  

• Keep records and documents about the complaint, such as receipts, stubs, bills, applications, and other materials.  

FAIR HOUSING FACT SHEET  

Disability Discrimination  

California Fair Housing Laws Protect You From Discrimination!  

The California Fair Employment and Housing Act protects you from illegal discrimination and harassment in housing based on a mental or physical disability.  Discrimination includes, but is not limited to, the following actions:  

• Failure to provide reasonable accommodation in rules, policies, practices, or procedures when necessary to afford a person with a disability equal opportunity to use and enjoy a dwelling  

• Refusal to permit reasonable modification, at the tenant’s expense, when necessary to afford a person with a disability full enjoyment of the premises  

• Failure to design and construct multi-family dwellings in a manner that allows access to and use by persons with disabilities  

• Refusal to rent, lease, or sell housing  

• Discriminatory policies, practices, terms, or conditions that result in unequal access to housing or housing-related services  

What is considered a disability under California law?  

• Under California law, a disability is a mental or physical impairment, disorder, or condition that limits a major life activity.  The definition of disability includes a diagnosis of HIV/AIDS, as well as medical conditions related to cancer and genetic characteristics.  

• Major life activities include, but are not limited to, physical, mental, and social activities and working.  Further, whether a condition or disability “limits” a major life activity must be determined without respect to any mitigating measures such as medications, assistive devices, prosthetics, or reasonable accommodations, unless the mitigating measure itself limits a major life activity.  

What rights do I have as a tenant with a disability?  

Persons with disabilities are entitled to be free from harassment and discrimination in all aspects of housing.  They also have a right to reasonable accommodation in rules, policies, practices, or services related to housing when necessary to afford a person with a disability equal opportunity to use and enjoy a dwelling and are permitted, at their own expense, to modify their dwellings to ensure full enjoyment of the premises.  

New construction of certain multi-family dwelling units built for first occupancy after March 13, 1991, and ten percent of multi-story dwelling units built after July 1, 2005, are required to include specified accessibility features for persons with disabilities including accessibility to the primary entrance in common areas and in designated units.  

Multi-family dwelling units and multi-story dwelling units that are required to include the specified accessibility features are those dwelling units that are contained in a building with four or more condominium dwelling units or with three or more rental apartment dwelling units.  In buildings with an elevator, all dwelling units must include the specified accessibility features.  In buildings without an elevator, only the ground floor units must contain the specified accessibility features.  A multi-story dwelling unit is defined as a condominium or rental apartment dwelling unit that contains finished living space on one floor and the floor immediately above or below it.  

Ten percent of multi-story dwelling units built on or after July 1, 2005, are also required to have an accessible route to the entrance on the primary entry level and at least one accessible bathroom on the primary entry level and in the public and common areas.  

The multi-family and multi-story dwellings must be designed and constructed to permit access to and use by persons with disabilities and must provide, at a minimum, the following specified accessibility features:  

• Building entrances that are on an accessible route  

• Public and common areas that are readily accessible and usable by persons with disabilities  

• An accessible route into and through the unit  

• Doors, kitchens, and bathrooms designed to allow access, passage, and maneuvering by persons using wheelchairs  

• Light switches, electrical outlets, thermostats and other environmental controls in accessible locations  

• Bathroom design that allows installation of safety grab bars around toilets, tubs, or shower stalls and seats  

What should I do if I believe I have been discriminated against?  

If you believe you have experienced illegal discrimination or harassment, you can explore filing a complaint with the Department of Fair Employment and Housing (DFEH) by taking the following steps within one year of the incident:  

• Contact DFEH in writing or at our toll-free Housing number (800) 233-3212  

• Provide specific facts about the incident or situation  

• Provide copies of documents that support the charges in your complaint  

• Keep records and documents about the complaint, such as a diary or log of incidents, rent receipts, applications, and other potential proof of discrimination  

What will DFEH do?  

If your complaint is accepted, DFEH will conduct an impartial investigation.  DFEH is a neutral fact-finder and does not represent you or the parties named in the complaint.  DFEH tries to assist both parties to resolve the complaint.  

Examples of resolutions could include:  

• Making available the previously denied housing or accommodation  

• Compensation for losses and emotional distress  

• Training and policy changes to prevent future discrimination  

• Other actions to eliminate the effects of discrimination, such as penalties and fines  

If DFEH is unable to resolve the complaint, and there is sufficient evidence to establish a violation of the law, the matter may be litigated by the Department before the Fair Employment and Housing Commission or in civil court.  

Can I file a lawsuit before or after I file a complaint with DFEH?  

You have the right to file a lawsuit on your own behalf in a California court within two years of the alleged discriminatory act.  It is not necessary to file a complaint with DFEH prior to the filing of a lawsuit.  If you do file with DFEH, the time that a complaint is pending with DFEH will not count when computing the two-year period.  

Are there other agencies that can help?  

The U. S. Department of Housing and Urban Development (HUD) enforces federal laws that prohibit discrimination in housing.  HUD also monitors subsidized housing programs.  For further information, call (800) 347-3739, or visit the web site at www.hud.gov.  

The State of California Department of Consumer Affairs can help with questions or complaints regarding landlord/ tenant relationships including repairs, safety violations, and Health and Safety Code violations.  For further information, call (800) 952-5210, or visit the web site at www.dca.ca.gov.  

The Mobile Home Ombudsperson at the California Department of Housing and Community Development can help with questions or complaints pertaining to mobile homes, including health and safety issues, maintenance issues, and warranty issues.  For further information, call (800) 952-5275, or visit the web site at www.hcd.ca.gov.  

Frequently Asked Questions about Titles II and III of the ADA  

Q. Does the ADA apply to State and local governments?  

A. Title II of the ADA prohibits discrimination against qualified individuals with disabilities in all programs, activities, and services of public entities.  It applies to all State and local governments, their departments and agencies, and any other instrumentalities or special purpose districts of State or local governments.  It clarifies the requirements of section 504 of the Rehabilitation Act of 1973 for public transportation systems that receive Federal financial assistance, and extends coverage to all public entities that provide public transportation, whether or not they receive Federal financial assistance.  It establishes detailed standards for the operation of public transit systems, including commuter and intercity rail (AMTRAK).  

Q. When do the requirements for State and local governments become effective?  

A. In general, they became effective on January 26, 1992.  

Q. How does title II affect participation in a State or local government's programs, activities, and services?  

A. A state or local government must eliminate any eligibility criteria for participation in programs, activities, and services that screen out or tend to screen out persons with disabilities, unless it can establish that the requirements are necessary for the provision of the service, program, or activity.  The State or local government may, however, adopt legitimate safety requirements necessary for safe operation if they are based on real risks, not on stereotypes or generalizations about individuals with disabilities.  Finally, a public entity must reasonably modify its policies, practices, or procedures to avoid discrimination.  If the public entity can demonstrate that a particular modification would fundamentally alter the nature of its service, program, or activity, it is not required to make that modification.  

Q. Does title II cover a public entity's employment policies and practices?  

A. Yes.  Title II prohibits all public entities, regardless of the size of their work force, from discriminating in employment against qualified individuals with disabilities.  In addition to title II's employment coverage, title I of the ADA and section 504 of the Rehabilitation Act of 1973 prohibit employment discrimination against qualified individuals with disabilities by certain public entities  

Q. What changes must a public entity make to its existing facilities to make them accessible?  

A. A public entity must ensure that individuals with disabilities are not excluded from services, programs, and activities because existing buildings are inaccessible.  A State or local government's programs, when viewed in their entirety, must be readily accessible to and usable by individuals with disabilities.  This standard, known as "program accessibility," applies to facilities of a public entity that existed on January 26, 1992.  Public entities do not necessarily have to make each of their existing facilities accessible.  They may provide program accessibility by a number of methods including alteration of existing facilities, acquisition, or construction of additional facilities, relocation of a service or program to an accessible facility, or provision of services at alternate accessible sites.  

Q. When must structural changes be made to attain program accessibility?  

A. Structural changes needed for program accessibility must be made as expeditiously as possible, but no later than January 26, 1995.  This three-year time period is not a grace period; all alterations must be accomplished as expeditiously as possible.  A public entity that employs 50 or more persons must have developed a transition plan by July 26, 1992, setting forth the steps necessary to complete such changes.  

Q. What is a self-evaluation?  

A. A self-evaluation is a public entity's assessment of its current policies and practices.  The self-evaluation identifies and corrects those policies and practices that are inconsistent with title II's requirements.  All public entities must complete a self-evaluation by January 26, 1993.  A public entity that employs 50 or more employees must retain its self-evaluation for three years.  Other public entities are not required to retain their self-evaluations, but are encouraged to do so because these documents evidence a public entity's good faith efforts to comply with title II's requirements.  

Q. What does title II require for new construction and alterations?  

A. The ADA requires that all new buildings constructed by a State or local government be accessible.  In addition, when a State or local government undertakes alterations to a building, it must make the altered portions accessible.  

Q. How will a State or local government know that a new building is accessible?  

A. A State or local government will be in compliance with the ADA for new construction and alterations if it follows either of two accessibility standards.  It can choose either the Uniform Federal Accessibility Standards or the Americans with Disabilities Act Accessibility Guidelines for Buildings and Facilities, which is the standard that must be used for public accommodations and commercial facilities under title III of the ADA.  If the State or local government chooses the ADA Accessibility Guidelines, it is not entitled to the elevator exemption (which permits certain private buildings under three stories or under 3,000 square feet per floor to be constructed without an elevator).  

Q. What requirements apply to a public entity's emergency telephone services, such as 911?  

A. State and local agencies that provide emergency telephone services must provide "direct access" to individuals who rely on a TDD or computer modem for telephone communication.  Telephone access through a third party or through a relay service does not satisfy the requirement for direct access.  Where a public entity provides 911 telephone service, it may not substitute a separate seven-digit telephone line as the sole means for access to 911 services by nonvoice users.  A public entity may, however, provide a separate seven-digit line for the exclusive use of nonvoice callers in addition to providing direct access for such calls to its 911 line.  

Q. Does title II require that telephone emergency service systems be compatible with all formats used for nonvoice communications?  

A. No.  At present, telephone emergency services must only be compatible with the Baudot format.  Until it can be technically proven that communications in another format can operate in a reliable and compatible manner in a given telephone emergency environment, a public entity would not be required to provide direct access to computer modems using formats other than Baudot.  

Q. How will the ADA's requirements for State and local governments be enforced?  

A. Private individuals may bring lawsuits to enforce their rights under title II and may receive the same remedies as those provided under section 504 of the Rehabilitation Act of 1973, including reasonable attorney's fees.  Individuals may also file complaints with eight designated Federal agencies, including the Department of Justice and the Department of Transportation.  

Q. What are public accommodations?  

A. A public accommodation is a private entity that owns, operates, leases, or leases to, a place of public accommodation.  Places of public accommodation include a wide range of entities, such as restaurants, hotels, theaters, doctors' offices, pharmacies, retail stores, museums, libraries, parks, private schools, and day care centers.  Private clubs and religious organizations are exempt from the ADA's title III requirements for public accommodations.  

Q. Will the ADA have any effect on the eligibility criteria used by public accommodations to determine who may receive services?  

A. Yes.  If a criterion screens out or tends to screen out individuals with disabilities, it may only be used if necessary for the provision of the services.  For instance, it would be a violation for a retail store to have a rule excluding all deaf persons from entering the premises, or for a movie theater to exclude all individuals with cerebral palsy.  More subtle forms of discrimination are also prohibited.  For example, requiring presentation of a driver's license as the sole acceptable means of identification for purposes of paying by check could constitute discrimination against individuals with vision impairments.  This would be true if such individuals are ineligible to receive licenses and the use of an alternative means of identification is feasible.  

Q. Does the ADA allow public accommodations to take safety factors into consideration in providing services to individuals with disabilities?  

A. The ADA expressly provides that a public accommodation may exclude an individual, if that individual poses a direct threat to the health or safety of others that cannot be mitigated by appropriate modifications in the public accommodation's policies or procedures, or by the provision of auxiliary aids.  A public accommodation will be permitted to establish objective safety criteria for the operation of its business; however, any safety standard must be based on objective requirements rather than stereotypes or generalizations about the ability of persons with disabilities to participate in an activity.  

Q. Are there any limits on the kinds of modifications in policies, practices, and procedures required by the ADA?  

A. Yes.  The ADA does not require modifications that would fundamentally alter the nature of the services provided by the public accommodation.  For example, it would not be discriminatory for a physician specialist who treats only burn patients to refer a deaf individual to another physician for treatment of a broken limb or respiratory ailment.  To require a physician to accept patients outside of his or her specialty would fundamentally alter the nature of the medical practice.  

Q. What kinds of auxiliary aids and services are required by the ADA to ensure effective communication with individuals with hearing or vision impairments?  

A. Appropriate auxiliary aids and services may include services and devices such as qualified interpreters, assistive listening devices, notetakers, and written materials for individuals with hearing impairments; and qualified readers, taped texts, and Brailled or large print materials for individuals with vision impairments.  

Q. Are there any limitations on the ADA's auxiliary aids requirements?  

A. Yes.  The ADA does not require the provision of any auxiliary aid that would result in an undue burden or in a fundamental alteration in the nature of the goods or services provided by a public accommodation.  However, the public accommodation is not relieved from the duty to furnish an alternative auxiliary aid, if available, that would not result in a fundamental alteration or undue burden.  Both of these limitations are derived from existing regulations and caselaw under section 504 of the Rehabilitation Act and are to be determined on a case-by-case basis.  

Q. Will restaurants be required to have brailled menus?  

A. No, not if waiters or other employees are made available to read the menu to a blind customer.  

Q. Will a clothing store be required to have brailled price tags?  

A. No, not if sales personnel could provide price information orally upon request.  

Q. Will a bookstore be required to maintain a sign language interpreter on its staff in order to communicate with deaf customers?  

A. No, not if employees communicate by pen and notepad when necessary.  

Q. Are there any limitations on the ADA's barrier removal requirements for existing facilities?  

A. Yes.  Barrier removal need be accomplished only when it is "readily achievable" to do so.  

Q. What does the term "readily achievable" mean?  

A. It means "easily accomplishable and able to be carried out without much difficulty or expense."  

Q. What are examples of the types of modifications that would be readily achievable in most cases?  

A. Examples include the simple ramping of a few steps, the installation of grab bars where only routine reinforcement of the wall is required, the lowering of telephones, and similar modest adjustments.  

Q. Will businesses need to rearrange furniture and display racks?  

A. Possibly.  For example, restaurants may need to rearrange tables and department stores may need to adjust their layout of racks and shelves in order to permit access to wheelchair users.  

Q. Will businesses need to install elevators?  

A. Businesses are not required to retrofit their facilities to install elevators unless such installation is readily achievable, which is unlikely in most cases.  

Q. When barrier removal is not readily achievable, what kinds of alternative steps are required by the ADA?  

A. Alternatives may include such measures as in-store assistance for removing articles from inaccessible shelves, home delivery of groceries, or coming to the door to receive or return dry cleaning.  

Q. Must alternative steps be taken without regard to cost?  

A. No, only readily achievable alternative steps must be undertaken.  

Q. How is "readily achievable" determined in a multisite business?  

A. In determining whether an action to make a public accommodation accessible would be "readily achievable," the overall size of the parent corporation or entity is only one factor to be considered.  The ADA also permits consideration of the financial resources of the particular facility or facilities involved and the administrative or fiscal relationship of the facility or facilities to the parent entity.  

Q. Who has responsibility for ADA compliance in leased places of public accommodation, the landlord or the tenant?  

A. The ADA places the legal obligation to remove barriers or provide auxiliary aids and services on both the landlord and the tenant.  The landlord and the tenant may decide by lease who will actually make the changes and provide the aids and services, but both remain legally responsible.  

Q. What does the ADA require in new construction?  

A. The ADA requires that all new construction of places of public accommodation, as well as of "commercial facilities" such as office buildings, be accessible.  Elevators are generally not required in facilities under three stories or with fewer than 3,000 square feet per floor, unless the building is a shopping center or mall; the professional office of a health care provider; a terminal, depot, or other public transit station; or an airport passenger terminal.  

Q. Is it expensive to make all newly constructed places of public accommodation and commercial facilities accessible?  

A. The cost of incorporating accessibility features in new construction is less than one percent of construction costs.  This is a small price in relation to the economic benefits to be derived from full accessibility in the future, such as increased employment and consumer spending and decreased welfare dependency.  

Q. Must every feature of a new facility be accessible?  

A. No, only a specified number of elements such as parking spaces and drinking fountains must be made accessible in order for a facility to be "readily accessible.”  Certain nonoccupiable spaces such as elevator pits, elevator penthouses, and piping or equipment catwalks need not be accessible.  

Q. What are the ADA requirements for altering facilities?  

A. All alterations that could affect the usability of a facility must be made in an accessible manner to the maximum extent feasible.  For example, if during renovations a doorway is being relocated, the new doorway must be wide enough to meet the new construction standard for accessibility.  When alterations are made to a primary function area, such as the lobby of a bank or the dining area of a cafeteria, an accessible path of travel to the altered area must also be provided.  The bathrooms, telephones, and drinking fountains serving that area must also be made accessible.  These additional accessibility alterations are only required to the extent that the added accessibility costs do not exceed 20% of the cost of the original alteration.  Elevators are generally not required in facilities under three stories or with fewer than 3,000 square feet per floor, unless the building is a shopping center or mall; the professional office of a health care provider; a terminal, depot, or other public transit station; or an airport passenger terminal.  

Q. Does the ADA permit an individual with a disability to sue a business when that individual believes that discrimination is about to occur, or must the individual wait for the discrimination to occur?  

A. The ADA public accommodations provisions permit an individual to allege discrimination based on a reasonable belief that discrimination is about to occur.  This provision, for example, allows a person who uses a wheelchair to challenge the planned construction of a new place of public accommodation, such as a shopping mall, that would not be accessible to individuals who use wheelchairs.  The resolution of such challenges prior to the construction of an inaccessible facility would enable any necessary remedial measures to be incorporated in the building at the planning stage, when such changes would be relatively inexpensive.  

Q. How does the ADA affect existing State and local building codes?  

A. Existing codes remain in effect.  The ADA allows the Attorney General to certify that a State law, local building code, or similar ordinance that establishes accessibility requirements meets or exceeds the minimum accessibility requirements for public accommodations and commercial facilities.  Any State or local government may apply for certification of its code or ordinance.  The Attorney General can certify a code or ordinance only after prior notice and a public hearing at which interested people, including individuals with disabilities, are provided an opportunity to testify against the certification.  

Q. What is the effect of certification of a State or local code or ordinance?  

A. Certification can be advantageous if an entity has constructed or altered a facility according to a certified code or ordinance.  If someone later brings an enforcement proceeding against the entity, the certification is considered "rebuttable evidence" that the State law or local ordinance meets or exceeds the minimum requirements of the ADA.  In other words, the entity can argue that the construction or alteration met the requirements of the ADA because it was done in compliance with the State or local code that had been certified.  

Q. When are the public accommodations provisions effective?  

A. In general, they became effective on January 26, 1992.  

Q. How will the public accommodations provisions be enforced?  

A. Private individuals may bring lawsuits in which they can obtain court orders to stop discrimination.  Individuals may also file complaints with the Attorney General, who is authorized to bring lawsuits in cases of general public importance or where a "pattern of practice" of discrimination is alleged.  In these cases, the Attorney General may seek monetary damages and civil penalties.  Civil penalties may not exceed $50,000 for a first violation or $100,000 for any subsequent violation.  

Q. Is the Federal government covered by the ADA?  

A. The ADA does not cover the executive branch of the Federal government.  The executive branch continues to be covered by title V of the Rehabilitation Act of 1973, which prohibits discrimination in services and employment on the basis of handicap and which is a model for the requirements of the ADA.  The ADA, however, does cover Congress and other entities in the legislative branch of the Federal government.  

Q. Does the ADA cover private apartments and private homes?  

A. The ADA does not cover strictly residential private apartments and homes.  If, however, a place of public accommodation, such as a doctor's office or day care center, is located in a private residence, those portions of the residence used for that purpose are subject to the ADA's requirements.  

Q. Does the ADA cover air transportation?  

A. Discrimination by air carriers in areas other than employment is not covered by the ADA but rather by the Air Carrier Access Act (49 U.S.C. 1374 (c)).  

Q. What are the ADA's requirements for public transit buses?  

A. The Department of Transportation has issued regulations mandating accessible public transit vehicles and facilities.  The regulations include requirements that all new fixed-route, public transit buses be accessible and that supplementary paratransit services be provided for those individuals with disabilities who cannot use fixed-route bus service.  For information on how to contact the Department of Transportation, see page 30.  

Q. How will the ADA make telecommunications accessible?  

A. The ADA requires the establishment of telephone relay services for individuals who use telecommunications devices for deaf persons (TDD's) or similar devices.  The Federal Communications Commission has issued regulations specifying standards for the operation of these services.  

Q. Are businesses entitled to any tax benefit to help pay for the cost of compliance?  

A. As amended in 1990, the Internal Revenue Code allows a deduction of up to $15,000 per year for expenses associated with the removal of qualified architectural and transportation barriers.  The 1990 amendment also permits eligible small businesses to receive a tax credit for certain costs of compliance with the ADA.  An eligible small business is one whose gross receipts do not exceed $1,000,000 or whose workforce does not consist of more than 30 full-time workers.  Qualifying businesses may claim a credit of up to 50 percent of eligible access expenditures that exceed $250 but do not exceed $10,250.  Examples of eligible access expenditures include the necessary and reasonable costs of removing architectural, physical, communications, and transportation barriers; providing readers, interpreters, and other auxiliary aids; and acquiring or modifying equipment or devices.