KANSAS CASINOS AND THE ADA1
KANSAS CASINOS
and
THE AMERICANS WITH DISABILITIES ACT
This article will address the requirements of the Americans with Disabilities Act, as amended (ADA), as it applies to the Kansas casinos. There are three Titles to the ADA, Title I which covers employment,[1] Title II which covers public services,[2] and Title III which covers public accommodations.[3] There are also implementing regulations for all three titles. The implementing regulations for Title I are 29 C.F.R. part 1630, the implementing regulations for Title II are 28 C.F.R. part 35, and the implementing regulations for Title III are 28 C.F.R. part 36. The statutes and regulations are available at: and
There are a number of court decisions and regulations that are applicable to casinos under the ADA and those decisions and regulations will be cited before proceeding with an analysis of the ADA as it applies to the Kansas casinos.
A.The judiciary is the final interpreter of federal statutes and regulations
In Chevron, USA, Inc. v. Natural Resources Defense Council, Inc.,[4]the U.S. Supreme Court held that:
The judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent.[5]
B.Federal agency technical assistance
Under Title III of the ADA, in Olmstead v. L.C. by Zimiring,[6] the U.S. Supreme Court held that:
Each federal agency responsible for ADA implementation may render technical assistance to affected individuals and institutions with respect to provisions of the ADA for which the agency has responsibility. See [42 U.S.C.] Sec. 12206(c)(1).[7]
C. Rehabilitation Act section 504 law applicable to Title II of the ADA
Under Title II of the ADA, in Helen L. v. DiDario,[8]the U.S. Court of Appeals for the Third Circuit held that:
The law developed under section 504 of the Rehabilitation Act is applicable to Title II of the ADA.[9]
D. State legislatures and the ADA
Under Title II of the ADA, in Helen L. v. DiDario,[10] the U.S. Court of Appeals for the Third Circuit held that:
However, the ADA applies to the General Assembly of Pennsylvania, and not just to DPW [Pennsylvania Department of Public Welfare].[11]
E. The ADA does not defer to any state statutes
Under Title II of the ADA, in Wood v. County of Alameda,[12]the U.S. District Court for the Northern District of California held that:
Giving to [42 U.S.C.] § 12201(b) the meaning which the Court must in light of Congress’ unambiguously stated intent to guarantee a certain level of access to the protections created by the ADA, it becomes clear that it is immaterial whether the California statute provides “greater or equal” protection than the ADA because Congress did not intend the ADA to “defer” to any state statutes, regardless of the level of additional protection which those statutes provide.[13]
Also, under Title II of the ADA, in Hahn Ex Rel. Barta v. Linn County, Iowa,[14] the U.S. District Court for the Northern District of Iowa held that:
The court finds that, because Linn County’s plan complies with Iowa Code § 331.439(1)(b) and (d), is not dispositive as to whether a violation of the ADA, RA, or ICRA has occurred.[15]
Furthermore, under Title II of the ADA, in American Association of People with Disabilities v. Hood,[16]the U.S. District Court for the Middle District of Florida held that:
Thus, regardless of any legal duties imposed by Florida law, the Court finds that Defendants must conform their conduct to satisfy federal requirements of the ADA.[17]
F. Access to state services and programs
Under Section 504 of the Rehabilitation Act, in Wagner by Wagner v. Fair Acres Geriatric Center,[18]the U.S. Court of Appeals for the Third Circuit held that:
It is irrelevant why a plaintiff sought access to a program, service or institution; our concern, for purposes of section 504, is why a plaintiff is denied access to a program, service or institution. (emphasis in original)[19]
G. State failure to supervise contractor’s compliance with the ADA
Under Title II of the ADA, in Deck v. City of Toledo,[20]the U.S. District Court for the Northern District of Ohio held that:
. . . the failure to supervise various contractors’ compliance with the ADA can amount to a discriminatory system.[21]
Also, ADA Title II regulation, 28 C.F.R. § 35.130(b)(5) states:
A public entity, in the selection of procurement contractors, may not use criteria that subject qualified individuals with disabilities to discrimination on the basis of disability.
H. Meaningful access to state programs and services
Under Title II of the ADA, in Chaffin v. Kansas State Fair Board,[22]the U.S. Tenth Circuit Court of Appeals held that:
The Fair states that as long as Plaintiffs had “access” to the State Fairgrounds and programs at the Kansas State Fair, they could not have been “excluded from” or “denied the benefits of” the Fair. We reject the argument that the ADA requires no more than physical access. Instead, we have held that the ADA requires public entities to provide disabled individuals “meaningful access” to their programs and services. (emphasis in original).[23]
Also, under Title III of the ADA, in U.S. v. Hoyt’s Cinemas Corp.,[24] the U.S. Court of Appeals for the First Circuit held that:
The ADA places substantial emphasis on equality of access.[25]
I. Reasonable accommodation/modification
Under Title I of the ADA, in Powers v. MJB Acquisition Corp.,[26]the U.S. District Court for the District of Wyoming held that:
Nowhere does Title III employ the term “reasonable accommodation;” that term appears in Title I of the ADA and applies only to employers. . . . As defined by the ADA, a reasonable accommodation is one that would not place hardship on an employer, while a reasonable modification is one that would not require fundamental alterations to a program, policy or facility. (citations omitted).[27]
J. Reasonable accommodations and modifications must be effective
Under Title I of the ADA, in U.S. Airways, Inc. v. Barnett,[28]the U.S. Supreme Court held that:
An ineffective “modification” or “adjustment” will not accommodate a disabled individual’s limitations. (emphasis in original).[29]
And, under Title I of the ADA, in E.E.O.C. v. Sears, Roebuck & Co.,[30]the U.S. Court of Appeals for the Seventh Circuit held that:
The duty of reasonable accommodation is satisfied when the employer does what is necessary to enable the disabled worker to work in reasonable comfort.[31]
K. Disparate treatment (intentional discrimination) and disparate impact claims cognizable under the ADA
Under Title I of the ADA, in Raytheon v. Hernandez,[32]the U.S. Supreme Court held that:
Both disparate-treatment and disparate-impact claims are cognizable under the ADA.[33]
Liability in a disparate-treatment case “depends on whether the protected trait . . . actually motivated the employer’s decision.” By contrast, disparate-impact claims “involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity.”[34]
L. ADA Title II disparate impact discrimination example
Under Title II of the ADA, in Crowder v. Kitagawa,[35]the U.S. Court of Appeals for the Ninth Circuit held that:
Although Hawaii’s quarantine requirement applies equally to all persons entering the state with a dog, its enforcement burdens visually-impaired persons in a manner different and greater than it burdens others. Because of the unique dependence upon guide dogs among many of the visually-impaired, Hawaii’s quarantine effectively denies these persons . . . meaningful access to state services, programs, and activities while such services, programs, and activities remain open and easily accessible by others. The quarantine, therefore, discriminates against the plaintiffs by reason of disability.[36]
Also, see the Settlement Agreement between Vernon Crowder, Linda Cote, et al, Class Plaintiffs, the United States of America, Plaintiff Intervenor, and the State of Hawaii, et al.[37]
M. Failure to comply with ADA regulations may be viewed as intentional discrimination
Under Title III of the ADA, in Association for Disabled Americans, Inc. v. Concorde Gaming Corporation,[38]the U.S. District Court for the Southern District of Florida held that:
Rather, the failure to comply with promulgated regulations, which must go through a considerable vetting process before they take effect, may be viewed as intentional discrimination.[39]
N. 28 C.F.R. §§ 35.151 and 35.150(b)(1) apply only to structural changes under Title II of the ADA
Under Title II of the ADA, in Tennessee v. Lane,[40]the U.S. Supreme Court interpreted 28 C.F.R. §§ 35.151 and 35.150(b)(1) as applying only to structural changes:
In the case of facilities built or altered after 1992, the regulations require compliance with specific architectural accessibility standards. 28 C.F.R. § 35.151 (2003). But in the case of older facilities, for which structural change is likely to be more difficult, a public entity may comply with Title II by adopting a variety of less costly measures, including relocating services to alternative, accessible sites and assigning aides to assist persons with disabilities in accessing services. § 35.150(b)(1). Only if these measures are ineffective in achieving accessibility is the public entity required to make reasonable structural changes.[41]
28 C.F.R. § 35.150 states:
(a) General. A public entity shall operate each service, program, or activity so that the service, program, or activity, when viewed in its entirety, is readily accessible to and usable by individuals with disabilities. This paragraph does not –
(1) Necessarily require a public entity to make each of its existing facilities accessible to and usable by individuals with disabilities. (emphasis added).
O. 28 C.F.R. § 35.130 applies to smoking polices under Title II of the ADA
(b)(7) A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.
P. Congress did not isolate the effects of smoking from the ADA
Under Title III of the ADA, in Staron v. McDonald’s Corp.,[42] the U.S. Court of Appeals for the Second Circuit held that:
It is plain to us that Congress did not intend to isolate the effects of smoking from the protections of the ADA. The first sentence of § 501(b) simply indicates that Congress, states, and municipalities remain free to offer greater protection for disabled individuals than the ADA provides. The passage does not state, and it does not follow, that violations of the ADA should go unredressed merely because a state has chosen to provide some degree of protection to those with disabilities.[43]
As to the second sentence of § 501(b), the Department of Justice regulations state that it “merely clarifies that the Act does not require public accommodations to accommodate smokers by permitting them to smoke.” 28 C.F.R. Pt. 36, App. B, 56 Fed. Reg. 35544,35562. Nothing in the second sentence precludes public accommodations from accommodating those with smoke-sensitive disabilities. In fact, this language expressly permits a total ban on smoking if a court finds it appropriate under the ACA. We therefore reject any arguments by defendants to the contrary. (emphasis added)[44]
Also, in Jama v. Immigration and Customs Enforcement,[45]the U.S. Supreme Court held that:
We do not lightly assume that Congress has omitted from its adopted text requirements that it nevertheless intends to apply and our reluctance is even greater when Congress has shown elsewhere in the same statute that it knows how to make such a requirement manifest.[46]
And, Congress demonstrated that it knew how to make exceptions to the ADA manifest when it enacted 42 U.S.C. § 12181(10) Specified Transportation, where Congress stated:
The term “specified transportation” means transportation by bus, rail, or any other conveyance (other than by aircraft) that provides the general public with general or special service (including charter aircraft) on a regular or continuing basis.
Q. Discrimination based on the effects of a disability on others
Under § 504 of the Rehabilitation Act, in School Board of Nassau County, Florida v. Arline,[47] the U.S. Supreme Court held that:
It would be unfair to allow an employer to seize upon the distinction between the effects of a disease on others and the effects of a disease on a patient and use that distinction to justify discriminatory treatment. (emphasis added).[48]
Congress’ desire to prohibit discrimination based on the effects a person’s handicap may have on others was evident from the inception of the [Rehabilitation] Act.[49]
Also, the Equal Employment Opportunity Commission (EEOC) has issued a How to Comply with the ADA Guide for Restaurants and other Food Service Employers.[50] In its Guide, example 5, the EEOC states:
An employer cannot claim undue hardship based on customer’s (or employees) fears or prejudices about a person’s disability. (emphasis added).
And the Department of Justice (DOJ) interpreted its 28 C.F.R. § 36.301 Title III regulations and the DOJ stated:
The wishes, tastes, or preferences of other customers may not be asserted to justify criteria that would exclude or segregate individuals with disabilities.(emphasis added).[51]
R. Smoking has a disparate impact on the breathing disabled
In Action on Smoking and Health v. Civil Aeronautics Board,[52]the U.S. Court of Appeals for the District of Columbia held that:
Health hazards of passive smoking are presumably much greater for people with conditions such as emphysema than for normally healthy persons.[53]
For example, Secretary of Health and Human Services Richard Schweiker stressed the importance of protecting sensitive individuals from the effects of passive smoking in a letter to the Chairman of the Board [CAB] dated May 13, 1981. The Secretary summed up his letter by saying that: “In short, involuntary or passive smoking is . . . a health risk to persons with existing respiratory, cardiovascular and other disabilities.” The previous Secretary of Health and Human Services had expressed similar concerns in letters to the Board.[54]
See also, The Health Consequences of Involuntary Exposure to Tobacco Smoke, A Report of the Surgeon General 2006. U.S. Public Health Service.[55]
S. Views of public health officials
Under Title III of the ADA, in Bragdon v. Abbott,[56]the U.S. Supreme Court held that:
In assessing the reasonableness of the petitioner’s actions, the views of public health authorities, such as the U.S. Public Health Service, CDC [Centers for Disease Control], and the National Institutes of Health, are of special weight and authority. The views of these organizations are not conclusive, however. A health care professional may refute it by citing a credible scientific basis for deviating from the accepted norm. (citations omitted).[57]
T. Deference to the reasonable judgments of public health officials
Under Section 504 of the Rehabilitation Act, in School Board of Nassau County, Florida v. Arline,[58]the U.S. Supreme Court held that:
In making these findings [of fact], courts should normally defer to the reasonable judgments of public health officials.[59]
U. Avoiding further knowledge
In United States v. Ladish Malting Company,[60]the U.S. Court of Appeals for the Seventh Circuit held that:
When someone knows enough to put him on inquiry, he knows much. If a person with a lurking suspicion goes on as before and avoids further knowledge, this may support an inference that he has deduced the truth and is simply trying to avoid giving the appearance (and incurring the consequences) of knowledge.[61]
V. A public accommodation cannot have hop-scotch areas of ADA application
Under Title VII of the Civil Rights Act, in United States v. Lansdowne Swim Club,[62]the U.S. District Court for the Eastern District of Pennsylvania held that:
“(o)nce an establishment is determined to be a place of entertainment, the entire facility is identified as such. [63]
Under Title III of the ADA, in Martin v. PGA Tour, Inc.,[64]the Magistrate Judge held that:
The operator of a public accommodation could not, in his view, “create private enclaves within the facility . . . and thus relegate the ADA to hop-scotch areas.”[65]
Furthermore, in the Amicus Curiae Brief of the United States of America in Martin v. PGA Tour, Inc.[66]the United States of America stated:
Finally, the PGA’s argument that places of public accommodation may have public and private areas for purposes of ADA application has no basis.[67]
W.Landlords and tenants are public accommodations
Under Title III of the ADA, in Botosan v. Paul McNally Realty,[68]the U.S. Court of Appeals for the Ninth Circuit held that:
28 C.F.R. § 36.201(b). Significantly, the landlord is a “public accommodation,” which triggers coverage under Title III. Furthermore, the regulation provides that allocation of responsibility between the landlord and a tenant by lease is effective only “[a]s between, the parties.” Thus, contractual allocation of responsibility has no effect on the rights of third parties. The power to waive or impose liability against a third party resides only in Congress, and Congress has stated that both the landlord and tenant are liable under the Act [ADA]. (citations omitted)[69]
X. Employer antidiscrimination policies
Under Title I of the ADA, in E.E.O.C. v. Wal-Mart Stores, Inc.,[70] the U.S. Court of Appeals for the Tenth Circuit held that:
Thus, the extent to which an employer has adopted antidiscrimination policies and educated its employees about the requirements of the ADA is important in deciding whether it is insulated from vicarious punitive liability. Wal-Mart certainly had a written policy against discrimination, but that alone is not enough. Our review of the record leaves us unconvinced that Wal-Mart made a good faith effort to educate its employees about the ADA’s prohibitions.[71]
Y. Title I business necessity defense applies only to the essential functions of the job
Under Title I of the ADA, in Morton v. United Parcel Service,[72]the U.S. Court of Appeals for the Ninth Circuit held that:
The job-relatedness feature of the ADA business necessity defense, then, must pertain only to essential functions of the job, so as to mesh with the statute’s affirmative provisions. The House Committee Report on the bill that became the ADA reflects precisely this understanding. (emphasis in original).[73]
Z. Compensatory and punitive damages under Title I
42 U.S.C. § 1981a(a)(2) provides that compensatory and punitive damages are available against an employer who engages in intentional discrimination but not for an employment practice that is unlawful because of its disparate impact.
And, 42 U.S.C. § 1981a(a)(2)(b)(1) states that: