Following are PROPOSED REGULATIONS governing DISCRIMINATION IN PLACES OF PUBLIC ACCOMMODATION in the COMMONWEALTH OF MASSACHUSETTS.
Pursuant to Massachusetts statute and regulation,
the public is invited to comment upon these regulations, through April 14, 2000.
TITLE 804:
MASSACHUSETTS COMMISSION AGAINST
DISCRIMINATION
CHAPTER 5.00:
NON-DISCRIMINATION BY PLACES OF PUBLIC ACCOMMODATION
BASED ON DISABILITY
Section
5.01 PURPOSE
Section
5.02 APPLICABILITY
Section
5.03 RELATIONSHIP TO OTHER LAWS
Section
5.05 GENERAL REQUIREMENTS
Section
5.06 SPECIFIC REQUIREMENTS
The purpose of 804 C.M.R 5.00 et. seq.
is to implement the disability non-discrimination provisions of the Public
Accommodations Statute, G.L. c. 272 §§ 92A and 98.
804 C.M.R. 5.00 and G.L. c. 272, §§ 92A and
98 prohibit discrimination as described herein by any person or entity that
owns, leases, leases to, or operates any place of public accommodation, as well
as discrimination concerning a place of public accommodation by persons who
neither own, lease nor operate the place of public accommodation.
804 C.M.R. 5.00 does not invalidate or limit
the remedies, rights, and procedures of any Federal laws, or other State and
local laws (including State common law) that provide greater or equal
protection for the rights of individuals with disabilities or individuals
associated with them. 804 C.M.R. 5.00 does not apply where an alternative,
comprehensive state administrative enforcement procedure is available, such as
the Architectural Access Board regulations, 521 C.M.R. §1, et seq., or the
Special Education regulations, 603 C.M.R. § 28.00, et. seq.
The following terms as used in 804 C.M.R.
5.00 shall have the following meanings:
(1) Current illegal use of drugs
means illegal use of drugs that occurred
recently enough to justify a reasonable belief that a person’s drug use is
current or that continuing use is a real and ongoing problem.
(2) Disability
means, with respect to an individual, a
physical or mental impairment that substantially limits one or more of the
major life activities of such individual; a record of such an impairment; or
being regarded as having such an impairment.
(a)
Physical
or mental impairment means:
1)
Any physical
or mental disorder or condition, cosmetic disfigurement, or anatomical loss
affecting one or more of the following body systems: neurological;
muscoskeletal; special sense organs; respiratory, including speech organs;
cardiovascular; reproductive; digestive; genitourinary; hemic and lymphatic;
skin; and endocrine;
2)
Any mental
or physiological disorder such as mental retardation, organic brain syndrome,
emotional or mental illness, and specific learning disabilities;
3)
The phrase
physical or mental impairment includes, but is not limited to, such contagious
and non-contagious diseases and conditions, as orthopedic, visual, speech, and
hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple
sclerosis, heart disease, diabetes, mental retardation, emotional illness,
specific learning disabilities, HIV disease (whether symptomatic or
asymptomatic), tuberculosis, drug addiction, and alcoholism.
(b)
Major
Life Activities
are those basic activities that the
average person in the general population can perform with little or no
difficulty. Examples of major life activities include functions such as: caring
for oneself, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working. The determination of whether an impairment
substantially limits one or more major life activities shall be made without
regard to the availability of medication, assistive devices, or other
mitigating measures.
(c)
Substantially
limits
means an impairment that prohibits or
significantly restricts an individual in his or her ability to perform a major
life activity as compared to the ability of the average individual in the
general population to perform the same activity. The determination of whether
an impairment substantially limits a major life activity depends on the nature
and severity of the impairment, the duration or expected duration of the
impairment, and the permanent or long term impact of the impairment.
(d)
Has a
record of such an impairment
means has a history of, or has been
misclassified as having, a mental or physical impairment that substantially
limits one or more major life activities.
(e)
Is
regarded as having an impairment
means:
1)
Has a
physical or mental impairment that does not substantially limit a major life
activity but that is treated by an individual or entity as constituting such a
limitation; or
2)
Has a
physical or mental limitation that substantially limits a major life activity
only as a result of the attitudes of others towards such an impairment; or
3)
Has none of
the impairments defined in paragraphs (e) (1) or (2) but is treated by an
individual or entity as having such an impairment.
(3) Drug
means a controlled substance, as set forth in the
Massachusetts Controlled Substance Act (G.L. c. 94C, §§ 3 and 31).
(4) Illegal
use of drugs
means the use of one or more drugs, the possession or
distribution of which is unlawful under the Massachusetts Controlled Substance
Act (G.L. c. 94C, §1 et seq.) The term illegal use of drugs does not
include the use of a drug taken under supervision by a licensed health care
professional, or other uses authorized by G.L. c. 94 C or other provisions of
Federal and State law.
(5) Individual
with a disability
means a person who has a disability. The term “individual
with a disability” does not include an individual who is currently engaging in
the illegal use of drugs when a place of public accommodation acts on the basis
of such use.
(6) Place
of public accommodation
means any place which is open to and accepts or solicits
patronage from the general public, whether such places are licensed or
unlicensed, or whether they are privately or publicly owned and operated. The
examples listed below are not intended to limit the general definition of what
may be considered places of public accommodation.
Examples of places of public accommodation
include the following:
(a)places of lodging, including hotels, inns,
motels, campgrounds, resorts, and other short term lodging facilities;
(b)
restaurants,
bars, and other establishments serving food or drink;
(c) theaters, concert halls, sports stadiums,
and other places of entertainment;
(d)
auditoriums,
convention centers, lecture halls, houses of worship, and other places of
public gathering;
(e)sales and rental establishments, including
stores, shopping centers, automobile rental agencies, and other retail
establishments;
(f) service establishments, including
laundromats, dry-cleaners, banks, barber shops, travel agents, gas stations,
funeral parlors, employment agencies, and providers of professional services
such as lawyers, accountants, and insurance agents;
(g)
health
care facilities, including dental and medical offices, pharmacies, clinics,
hospitals, nursing homes, and other health facilities;
(h)
transportation
vehicles of all types and transportation stations, terminals, depots, platforms
and facilities appurtenant thereto;
(i) museums, libraries, galleries, and other
places of public display or collection;
(j) parks, zoos, amusement parks, and other
places of recreation;
(k) schools, including nursery, elementary,
secondary, undergraduate, postgraduate, vocational, and other places of
education;
(l) child care or enrichment centers, senior
citizens centers, homeless shelters, food banks, adoption agencies, and other
social service establishments;
(m)
gymnasiums, health spas, bowling alleys,
swimming pools, beaches, golf
courses, and
other places of exercises or recreation;
(n)
public
sidewalks, streets, highways, boardwalks, and other public ways;
(o)
public
spaces and offices of state and local government entities including court
rooms, hearing rooms, meeting rooms, waiting areas, polling places, visitors’
galleries, public information counters, and displays.
(7) Private
club
means a club or establishment that is not open to and does
not accept or solicit the patronage of the general public. In determining
whether a club or establishment is private, factors to be considered include:
selectivity in membership, the existence of formal membership procedures, the
extent of use of club or establishment facilities by nonmembers, the nature of
internal governance, whether the club or establishment advertises, and the
predominance of a profit motive for the existence of the club or establishment.
(8) Qualified
interpreter
means an interpreter who is able to interpret effectively,
accurately, and impartially both receptively and expressively, using any
necessary specialized vocabulary.
(9) Readily
achievable
means easily accomplishable and able to be carried out
without much difficulty or expense. In determining whether an action is readily
achievable, factors to be considered include the following:
(a) The nature and cost of the action needed
under 804 C.M.R. 5.00;
(b)
The
overall financial resources of the site or sites involved in the action; the
number of persons employed at the site; the effect on expenses and resources;
legitimate safety requirements that are necessary for safe operation, including
crime prevention measures; or the impact otherwise of the action upon the
operation of the site;
(c) The geographic separateness, and the
administrative or fiscal relationship of the site or sites in question to the
parent corporation or entity;
(d)
If
applicable, the overall financial resources of the parent corporation or entity;
the overall size of the parent corporation or entity with respect to the number
of its employees and the number, type, and location of its facilities;
(e) If applicable, the type of operation or
operations of any parent corporation or entity, including the composition,
structure; and
(f)
Functions of the workforce of the parent
corporation or entity.
(10) Service
animal
means any guide dog, signal dog, or other animal trained to
do work or perform tasks for the benefit of an individual with a disability,
including, but not limited to, guiding individuals with impaired vision,
alerting individuals with impaired hearing to intruders or sounds, providing
minimal protection or rescue work, pulling a wheelchair, or fetching dropped
items.
(11) Undue
burden
means significant difficulty or expense. In determining
whether an action would result in an undue burden, factors to be considered
include the following:
(a) The nature and cost of the action needed
under 804 C.M.R. 5.00;
(b) The
overall financial resources of the site or sites involved in the action; the number
of persons employed at the site; the effect on expenses and resources; legitimate
safety requirements that are necessary to safe operation, including crime
prevention measures; or the impact otherwise of the action upon the operation
of the site;
(c)
The geographic separateness, and the
administrative or fiscal relationship of
the site or
sites in question to any parent corporation or entity;
(d)
If
applicable, the overall financial resources of any parent company or entity;
the overall size of the parent corporation
or entity with respect to the number of
its employees; the number, type, and location of its facilities; and
(e) If applicable, the type of operation or
operations of any parent corporation or entity, including the composition,
structure, and functions of the workforce of the parent corporation or entity.
Section 5.05 GENERAL REQUIREMENTS
(1) Prohibition
of discrimination
No individual shall be discriminated against on the basis of
disability in the full and equal enjoyment of the goods, services, facilities,
privileges, advantages, or accommodation in a place of public accommodation,
subject to the defenses set forth in 5.05(3).
(a) Landlord and Tenant Responsibilities
Both the landlord who owns a building that
houses a place of public accommodation and the tenant who owns or operates a
place of public accommodation are subject to the requirements of 804 C.M.R. 5.00.
(b)
Donated
Space
Whoever utilizes donated space as a place
of public accommodation is subject to the requirements of 804 C.M.R. 5.00.
(2) Prohibited
Activities
(a)Denial of Participation
A place of public accommodation may not
subject an individual or class of individuals, on the basis of disability or
disabilities of the individual or class, directly or through contractual,
licensing, or other arrangements, to a denial of the opportunity of the
individual or class to participate in or benefit from the goods, services,
facilities, privileges, advantages, or accommodations of the place of public
accommodation.
(b)
Participation
in unequal benefits
A place of public accommodation may not
afford an individual or class of individuals, on the basis of a disability or disabilities
of the individual or class, directly, or through contractual, licensing or
other arrangements, with the opportunity to participate in or benefit from a
good, service, facility, privilege, advantage, or accommodation that is not
equal to that afforded to other individuals of the place of public
accommodation.
(c)
Separate
benefit
A place of public accommodation may not
provide an individual or class of individuals, on the basis of a disability or
disabilities of the individual or class, directly or through contractual,
licensing, or other arrangements with a good, service, facility, privilege,
advantage, or accommodation in a place of public accommodation that is
different or separate from that provided to other individuals, unless the
action is necessary to provide the individual or class of individuals with a
good, service, facility, privilege, advantage, or accommodation, or other
opportunity that is as effective as that provided to others.
(3) Integrated
Settings
(a)General
A place of public accommodation shall
afford goods, services, facilities, privileges, advantages, and accommodations
to an individual with a disability in the most integrated setting appropriate
to the needs of the individual.
(b)
Opportunity
to participate
Notwithstanding the existence of separate
or different programs or activities provided in accordance with 804 C.M.R. 5.04
and 5.05, a place of public accommodation may not deny an individual with a
disability an opportunity to participate in programs or activities in a place
of public accommodation that are not separate or different.
(c)
Accommodations
and services
Nothing in 804 C.M.R. 5.00 shall be construed
to require an individual with a disability to accept an available
accommodation, service, opportunity, or benefit that the individual chooses not
to accept.
(4) Administrative
Methods
A place of public accommodation may not, directly or through
contractual or other arrangements, utilize standards or criteria or methods of
administration that have the effect of discriminating on the basis of
disability, or that perpetuate the discrimination of others who are subject to
common administrative control.
(5) Association
A place of public accommodation may not exclude or otherwise
deny equal goods, services, facilities, privileges, advantages, accommodations,
or other opportunities to an individual or entity because of the known
disability of an individual with whom the individual or entity is known to have
a relationship or association.
(6) Retaliation
or Coercion
(a) No person or entity may discriminate
against any individual in a place of
public accommodation because that
individual has opposed any act or practice made unlawful by 804 C.M.R. 5.00, or
because that individual made a charge, testified, assisted, or participated in
any manner in an investigation, proceeding, or hearing under G.L. c. 272 §§ 92
A and 98 or 804 C.M.R. 5.00.
(b)
No
person or entity may coerce, intimidate, threaten, or interfere with any
individual in the exercise or enjoyment
of, or on account of his or her having exercised or enjoyed, or on account of
his or her having aided or encouraged any other individual in the exercise or
enjoyment of, any right granted or protected by G.L. c. 272, §§ 92A and 98 or
804 C.M.R. 5.00.
(c)
Illustrations of prohibited conduct
include, but are not limited to:
1) Coercing an individual to deny or limit
the benefits, services or advantages to which he or she is entitled under G.L.
c. 272, §§ 92A and 98 or 804 C.M.R. 5.00;
2) Threatening, intimidating, or
interfering with an individual with a disability who is seeking to obtain or
use the goods, services, facilities, privileges, advantages, or accommodations
of a place of public accommodation;
3) Intimidating or threatening any person
because that person is assisting or encouraging an individual or group entitled
to claim the rights granted or protected by G.L. c. 272, §§ 92A and 98 or 804
C.M.R. 5.00 to exercise those
rights; or
4) Retaliating against any person because
that person has participated in any investigation or action to enforce G.L. c.
272, §§ 92A and 98 or 804 C.M.R. 5.00.
(7) Place
of Public Accommodation Located in Private Residences
(a) When a place of public accommodation is
located in a private residence, the portion of the residence used exclusively
as a residence is not covered by 804 C.M.R. 5.00, but that portion used
exclusively in the operation of the place of public accommodation or that
portion used both for the place of public accommodation and for residential
purposes is covered by 804 C.M.R. 5.00.
(b)
The
portion of the residence covered under 804 C.M.R. 5.04(7)(a) extends to
those elements used to enter the place of
public accommodation, including the front sidewalk, if any, the door or
entryway, and hallways; and those portions of the residence, interior or
exterior, available to or used by customers or clients, including bathrooms.
(8) Illegal
Use of Drugs
(a)General
Except as otherwise provided in 804 C.M.R.
5.04(8), 804 C.M.R. 5.00 does not prohibit discrimination based on that
individual’s current illegal use of drugs. A place of public accommodation
shall not discriminate against an individual in a place of public accommodation
if that person is not currently using illegal drugs but:
1) previously engaged in illegal use of drugs
and:
a) has successfully completed a supervised
drug rehabilitation
program or has otherwise been
rehabilitated successfully; or
b) is participating in a supervised
rehabilitation program; or
2) is erroneously regarded as engaging in
such illegal drug use.
(b)
Health
and Drug Rehabilitation Services
A place of public accommodation shall not
deny health service, or services provided in connection with drug rehabilitation, to an individual on the
basis of that individual’s current illegal use of drugs, if that individual is
otherwise entitled to such services. A drug rehabilitation or treatment program
may deny participation to individuals who engage in illegal drug use while they
are in the program.
(9) Smoking
804 C.M.R. 5.00 does not preclude the prohibition of, or the
imposition of restrictions on, smoking in a place of public accommodation.
(10) Maintenance
of Accessible Features
(a)General Maintenance
A place of public accommodation shall
maintain in fully working condition those features of facilities and equipment
that are required to be readily accessible to and usable by persons with
disabilities by G.L. c. 272, §§ 92A and 98 or 804 C.M.R. 5.00.
(b)
Isolated
or Temporary Interruptions
804 C.M.R. 5.00 does not prohibit isolated or
temporary interruptions in services due to maintenance or repairs.
(11) Insurance
A place of public accommodation shall not refuse to serve an
individual with a disability because its insurance company conditions coverage
or rates on the absence of individuals with disabilities.
Section 5.06 SPECIFIC REQUIREMENTS
(1) Eligibility
Criteria
(a)General
A place of public accommodation shall not
impose or apply eligibility criteria that screen out or tend to screen out an
individual with disabilities or any class of individuals with disabilities from
fully and equally enjoying any goods, services, facilities, privileges,
advantages, or accommodations, unless such criteria can be shown to be
necessary for the provision of the goods, services, facilities, privileges,
advantages, or accommodations being offered.
(b)
Safety
A place of public accommodation may impose
legitimate safety criteria that are necessary for safe operations. Safety
requirements must be based on actual risks and not on mere speculation,
stereotypes, or generalizations about individuals with disabilities.
(c)
Surcharges
A place of public accommodation may not
impose a surcharge on a particular individual with a disability or any group of
individuals with disabilities to cover the cost of measures such as the
provision of auxiliary aids and services, barrier removal, alternatives to
barrier removal, and other reasonable modifications that are required to
provide that individual or group with nondiscriminatory treatment required by
G.L. c. 272, §§ 92A and 98 or 804 C.M.R. 5.00.
(2) Reasonable
Accommodation
(a)General
A place of public accommodation shall
provide reasonable accommodation to individuals with disabilities when such
accommodation is necessary to provide individuals with disabilities with full
and equal goods, services, facilities, privileges, advantages, or
accommodations, subject to the defenses set forth in 804 C.M.R. 5.05 (3) below.
(b)
Examples
of Reasonable Accommodation
1) Reasonable modification of policies,
practices, or procedures
A place of public accommodation shall make
reasonable modification of policies, practices, or procedures where such
modification is necessary to provide individuals with disabilities with full
and equal goods, services, facilities, privileges, advantages, or
accommodations.
2) Service animals
A person or entity shall modify policies,
practices, or procedures to permit the use of a service animal by an individual
with a disability.
3) Check-out aisles
A store with check-out aisles shall ensure
that an adequate number of accessible check-out aisles are kept open during
store hours or shall otherwise modify its policies and practices to ensure that
an equivalent level of convenient service is provided to individuals with
disabilities
is provided to others.
4) Provision of auxiliary aids and
services
A place of public accommodation shall
furnish appropriate auxiliary aids and services where necessary to ensure
effective communication with individuals with disabilities. Auxiliary aids and
services include: equipment, devices, materials, and services necessary to
provide effective communication with individuals with disabilities.
Examples of auxiliary aids and services
include:
a) Qualified interpreters, note takers,
computer-aided transcription services, written materials, telephone handset
amplifiers, assistive listening devices, telephones compatible with hearing
aids, open and closed captioning, closed caption decoders, test telephones
(TTYs), videotext displays, and other effective methods of making aurally
delivered materials available to people who are deaf or hard of hearing;
b) Qualified readers, taped texts, audio
recordings, Brailled materials, large print materials, or other effective
methods of making visually delivered materials available to individuals with
visual impairments;
c) Acquisition or modification of equipment
or devices;
d) Other similar services and actions.
5) Removal of Barriers
a)
General
A place of public accommodation shall remove architectural
barriers including communication barriers that are structural in nature, where
such removal is readily achievable (i.e. easily accomplishable and able to be
carried out without much difficulty or expense).
b) Examples
Examples of steps to remove barriers
include but are not limited to, the following actions:
i.
Installing
ramps;
ii.
Making curb
cuts in sidewalks and entrances;
iii.
Repositioning
shelves;
iv.
Rearranging
tables, chairs, vending machines, display racks, and other furniture;
v.
Repositioning
telephones;
vi.
Adding
raised markings on elevator control buttons;
vii.
Installing
flashing light alarms;
viii.
Widening
doors;
ix.
Installing
offset hinges to widen doorways;
x.
Eliminating
a turnstile or providing an alternative accessible path;
xi.
Installing
accessible door hardware;
xii.
Installing
grab bars in toilet stalls;
xiii.
Rearranging
toilet partitions to increase maneuvering space;
xiv.
Insulating
lavatory pipes under sinks to prevent burns;
xv.
Installing a
raised toilet seat;
xvi.
Installing a
full length bathroom mirror;
xvii.
Repositioning
the paper towel dispenser in a bathroom;
xviii.
Creating a
designated accessible parking space;
xix.
Installing
an accessible paper cup dispenser at an existing inaccessible water fountain;
xx.
Removing
high pile, low density carpeting; or
xxi.
Installing
vehicle hand controls.
(3) Defenses
(a)
Direct
Threat
1) A place of public accommodation need not
permit an individual to participate in or benefit from the goods, services,
facilities, privileges, advantages and accommodations of that place of public
accommodation when that individual poses a direct threat to the health or
safety of others.
2) Direct threat means a significant risk of
substantial harm to the health or safety of others that cannot be eliminated by
a reasonable accommodation.
3) In determining whether an individual poses
a direct threat to the health or safety of others a place of public
accommodation must make an individualized assessment, based on reasonable
judgment that relies on current medical knowledge or on the best available
objective evidence, to ascertain: the nature, duration, and severity of the
risk; the probability that the potential injury will actually occur; and
whether reasonable accommodation will mitigate the risk.
(b)
Fundamental
Alteration
1) A place of public accommodation need not
make any accommodation if it can show that making that accommodation would
fundamentally alter the nature of the goods, services, facilities, privileges,
advantages, or accommodations offered by the place of public accommodation.
2) When making the accommodation would result
in a fundamental alteration, the place of public accommodation shall provide an
alternative accommodation that is effective in providing individuals with
disabilities full and equal accommodations, advantages, facilities, and
privileges to the maximum extent possible.
(c)
Undue
Burden
1) A place of public accommodation need not
make any accommodation if it can show that making the accommodation would
result in an undue burden, i.e. significant difficulty or expense.
2) When making the accommodation would result
in an undue burden, the place of public accommodation shall provide an
alternative accommodation that is effective in providing individuals with
disabilities full and equal goods, services, facilities, privileges,
advantages, or accommodations to the extent that such alternative accommodation
does not result in an undue burden.
3)
Barrier
Removal is Not Readily Achievable
a)
a place
of public accommodation shall not be required to remove barriers if it can show
that removal of barriers is not readily achievable, (i.e. easily accomplished
and able to be carried out without much difficulty);
b)
When
barrier removal is not readily achievable, the
place of public accommodation shall provide individuals with
disabilities full and equal goods, services, facilities, privileges,
advantages, or accommodations through alternative methods if those methods are
readily achievable. Examples of alternatives to barrier removal include, but
are not limited to, providing curb service or home delivery, retrieving
merchandise from inaccessible shelves or racks, and relocating activities to
accessible locations.
(d)
Program
Accessibility
It shall be a defense to a claim of
failure to remove barriers that the place of public accommodation is owned or
operated by state or local government or any department, agency, special
purpose district, or other instrumentality thereof, and that the public
accommodation has achieved program accessibility within the meaning of Section
504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, or Title II of the
Americans With Disabilities Act, 42 U.S.C. § 12131, et. seq.
(4) Religious Institutions
The provisions of 804 C.M.R. 5.00 do not bar
any religious or denominational institution or organization operated for
charitable or educational purposes, which is operated, supervised, or
controlled by or in connection with a religious organization, from limiting
admission to that institution or organization or from giving preference to
persons of the same religion or denomination. Nor is any religious or
denominational institution or organization barred from taking any action which
is calculated by the institution or organization to promote the religious
principles for which it is established and maintained.
(5)
Personal Devices or Services
A place of public accommodation need not
provide its customers, clients, or participants with personal devices such as
wheelchairs; individually prescribed devices such as prescription eyeglasses or
hearing aids; or substantial assistance of a personal nature.
(6)
Special Inventory or Orders
A place of public accommodation need not alter its inventory
to include accessible or special goods that are designed for, or facilitate use
by, individuals with disabilities, such as Brailled or taped books, closed
captioned video tapes, special lines of clothing or special foods. If a place
of public accommodation makes special orders on request for unstocked goods in
the normal course of its operation, then it shall order accessible or special
goods at the request of an individual with a disability, provided that doing so
is readily achievable.