Tag Archives: disabilities

Article – Public Accommodations Under the Civil Rights Act of 1964

Title II of the Civil Rights Act is turning 50 this year.  Yep, that makes it officially middle-aged.  It is not a young law anymore, nor is an old law.  Middle-aged seems apropos for this law. 

The law is still being argued and debated about its application.  For example, I have argued recently, police departments have an affirmative duty under Title II of the Civil rights Act and the Americans with Disabilities Act to make reasonable accommodations during investigations for those who they know ahead of time suffer from serious mental illnesses.

As with any anniversary, it is a good time to be retrospective.  While I don’t agree with all the conclusions this article makes, I think it is a good timely critical analysis of a perhaps under-recognized piece of legislation in present day society. 

 On its fiftieth anniversary, Title II of the Civil Rights Act of 1964 enjoys widespread social support on all sides of the political spectrum. That support is fully deserved to the extent that the nondiscrimination in public accommodations provisions offset the monopoly power of common carriers and public utilities, or neutralize the abusive application of public power and private violence to sup-press the free entry of firms that would otherwise target minority customers in competitive markets.

The subsequent expansion of Title II’s nondiscrimination principle becomes much more difficult to justify, however, when applied to normal businesses when segregationist forces no longer hold sway. In particular, these principles are suspect when applied to membership organizations that care about their joint governance and common objectives. In these cases, the principles of freedom of association should constitutionally protect all groups, even those that do not fall under the uncertain rubric of expressive associations.

The application of the modern antidiscrimination rules for public accommodations to Christian groups who are opposed to gay marriage on moral principle represents a regrettable inversion of the original purpose of Title II, using state power to force these groups to the unpalatable choice of exiting the market or complying with these modern human rights laws that prohibit any discrimination on grounds of sexual orientation. These rules should be struck down even if the other antidiscrimination prohibitions represent a group of settled expectations that no one today wishes to overturn.

Richard A. Epstein, Public Accommodations Under the Civil Rights Act of 1964: Why Freedom of Association Counts as a Human Right, 66 Stan. L. Rev. 1241.

Police Have Affirmative Duty to Accommodate Disabilities

The police are subject to Title II of the Americans with Disabilities Act.

[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.

— 42 U.S.C. § 12132.

Before the analysis goes too far, it is important to note not all disabilities are covered by the Americans with Disabilities Act.  Not just anyone with a disability is covered — it must be a “qualified individual.”  An individual with a disability is: a person with a physical or mental impairment that substantially limits a “major life activity.”  Direction for which disabilities substantially limit major life activities is defined in the statute: 42 U.S.C. § 12131(b) and 42 U.S.C. § 12102.

The language of the legislation says that a qualified individual cannot be denied the benefits of a public service or program.  Courts have interpreted this to mean that there is an affirmative duty, or a legal obligation to serve the disabled in a reasonable manner.[1] The United States Supreme Court said to prevent unconstitutional behavior, it must be prophylactic.  In other words, there must be something in place ahead of time to reasonably anticipate the needs of those with known disabilities.

Planning ahead of time in how to accommodate the disabled is a challenging proposition because each investigation is different. Investigations into domestic abuse provide a different set of challenges than road side traffic stop.  Crafting universal policies to deal with the various disabilities is difficult enough, but to apply those policies to the multitude of investigation types can be daunting.

Allowing uniformly-applied, disability-neutral policies to trump the ADA requirement of reasonable accommodations would utterly eviscerate that ADA requirement.

— Holly v. Clairson Indus., L.L.C., 492 F.3d 1247, 1263 (11th Cir. 2007).

On the other hand, allowing the police to treat everyone the same during an investigation would directly contradict the intentions of the Americans with Disabilities Act.

The accommodation must be reasonable and not create an undue burden for the police (since we are specifically talking about police investigations).

What is reasonable is usually judged on a reasonable person standard.  To use the standard the judge or a jury is asked to put themselves in the place of an imaginary person who is completely objective and of reasonable intelligence.[2] To judge if the accommodations are reasonable, a reasonable person would look to see if the accommodations “take steps to ensure that disabled persons have equal access to the goods and services such places offer.”[3] There may be the possibility that there may be more than one reasonable accommodation.  If there is, in fact, more than one reasonable accommodation then the police have a choice on which accommodation to choose.  The Americans with Disabilities Act says only a reasonable accommodation must be provided, not the best accommodation.[4]

Thus, there is a balancing act that courts undertake, especially in police investigations to apply the affirmative duty unless it imposes an “undue burden.”[5] Undue burden is intentionally left undefined, because multiple factors are involved to determine what unduly burdens a public program or service.  Using the example of police investigations, situations that create an undue burden on the Payson Police Department are probably most likely different than the Phoenix Police Department. Notwithstanding, the size and resources of each police department, courts also look to see what resources may be ascertained on short notice. Payson is a fairly isolated town in the middle of the Tonto National Forest that lacks resources from neighboring towns or cities.  If a problem arises that the city of Phoenix cannot handle on its own, it can ask for the support from any city in Maricopa County.

As each case is different in nature, the court will undertake the determination of what is a reasonable accommodation and what is an undue burden.  The court will look at all of the facts in a particular case and weigh the totality of the circumstances in making a determination.

In conclusion, the Americans with Disabilities Act creates an affirmative duty for the police to take some measures to accommodate the disabled ahead of time.  However, what that duty is remains unclear because of the fluid nature of police investigations.  In future posts in this series examining the police’s duty to accommodate, it will be analyzed in depth what circumstances require accommodations by the different circuits.

Part 1: The Police’s Duty to Accommodate Under the Americans with Disabilities Act

[1] Tennessee v. Lane, 541 U.S. 509, 533 (2004) (holding “Title II’s affirmative obligation to accommodate persons with disabilities in the administration of justice cannot be said to be ‘so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior. It is, rather, a reasonable prophylactic measure, reasonably targeted to a legitimate end.’”).

[2] Donahoo v. Master Data Ctr., 282 F. Supp. 2d 540, 557 (E.D. Mich. 2003). (“In this case, none of Defendant’s conduct was so extreme that a reasonable person would exclaim “Outrageous!” upon reviewing the facts described above”).

[3]Hahn ex rel. Barta v. Linn Cnty., 130 F. Supp. 2d 1036, 1057 (N.D. Iowa 2001) (stating “the ADA places an affirmative duty on owners and operators of places of public accommodation to make reasonable accommodations and to take steps to ensure that disabled persons have equal access to the goods and services such places offer”).

[4] “The agency was not required to provide [the Plaintiff] with the exact accommodations that [the Plaintiff] requested or the best accommodations, as long as what they provided was reasonable.” Ransome v. Barnhart, CCB-03-2532, 2005 WL 1075370 (D. Md. May 5, 2005).

[5] Toledo v. Sanchez, 454 F.3d 24, 32 (1st Cir. 2006) (stating “Title II imposes an affirmative obligation on public entities to make their programs accessible to qualified individuals with disabilities, except where compliance would result in a fundamental alteration of services or impose an undue burden.”)