“Reasonable Accommodation” and “Reasonable Modification” in the - DOC by tyndale

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									“Reasonable Accommodation” and “Reasonable Modification” in the Context

   of the Americans with Disabilities Act Are Two Distinct Terms Imposing

                                Different Legal Obligations

                                              Kay Han



ABSTRACT: This paper distinguishes the meaning of two ADA terms—―reasonable

accommodation‖ and ―reasonable modification‖—that are often used interchangeably by courts

and governmental agencies. Under the rules of statutory construction, reasonable

accommodation and reasonable modifications are two distinctive terms. More specifically, the

duty of reasonable accommodation requires an individualistic approach whereas the duty of

reasonable modification requires an across-the-board approach. The duty of reasonable

modification is a higher level of obligation than the duty of reasonable accommodation, and

therefore, the operators of public entities and public accommodations must go to greater lengths

to accommodate the disabled individuals than the employers for their disabled employees or

potential employees.



                                        INTRODUCTION

       The Americans with Disabilities Act (―ADA‖) provides private rights of action in cases

of disability-based discrimination. When a lawsuit is brought under ADA, it is the duty of the

courts to construe the statute as written and ascertain the legislative intent from the language of

the act. Title I of ADA requires employers to provide a ―reasonable accommodation‖ for

otherwise qualified employees or potential employees with disabilities1. Title II and III of ADA

require public entities and public accommodations to make ―reasonable modifications‖ in

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policies, practices, or procedures for the disabled individuals.2 Although the main purpose of

ADA is to provide clear legal mandates and standards that must be met in order to eliminate

discrimination against individuals with disabilities, the distinction, if any, between the two terms

of art—―reasonable accommodation‖ and ―reasonable modifications‖— is unclear.

Consequently, they are often deemed analogous and are used interchangeably by courts3 and

governmental agencies. However, in equating the two terms, the courts and governmental

agencies fail to construe the statute as written and disregard the original legislative intent in

formulating these two distinctive terms. The ADA statutory language, legislative history, and

case laws since the enactment of ADA indicate that ―reasonable accommodation‖ and

―reasonable modification‖ are two significantly different terms warranting differentiations when

construing the covered entities’ legal obligations, and therefore, counsels making pleas under

these terms must understand correct meaning of these terms and apply them appropriately.

       Reasonable accommodation and reasonable modification are two distinctive terms under

the rules of statutory construction. First, the plain, ordinary meanings of the two terms differ.

Accommodation is defined as providing or supplying something for convenience or to satisfy a

need, whereas modification is defined as making or resulting a change.4 Second, the reading of

the statute—the legislature’s intentional placement of the term ―accommodation‖ under Title I

and ―modification‖ under Titles II and III—indicate legislative intent of distinguishing the two

terms. Distinct applications of the terms – reasonable accommodation in workplace and

reasonable modification in public entities and public accommodations—indicate that they have

different implications. Third, legislative history manifests legislative intent to distinguish the

two terms. According to the original Congress that enacted ADA, individualizing opportunities

of people with disabilities was the essence of ―reasonable accommodation.‖5 On the contrary,



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―reasonable modification‖ does not depend on the presence of any specific individual; rather, it

focuses on removing barriers for disabled people which tends to be a long-term change6.

       The duty of reasonable accommodation requires an individualistic approach whereas the

duty of reasonable modification requires an across-the-board approach. The duty of reasonable

accommodation aims to provide an individual level of access to a qualified employee or potential

employee with disabilities whereas the duty of reasonable modification aims to provide a general

level of access to large constituencies.   The objective reasonable accommodation is to provide

each individual with a meaningful opportunity to participate. Equivalent, not equal, opportunity

must be provided to meet the individual needs of disabled persons to the same extent that the

corresponding needs of non-disabled persons are met. The duty of reasonable modification

contains a sweeping general rule that are geared toward providing a general level of access to

disabled people in general. By the same token, the duty of reasonable accommodation generally

requires supporting the disabled individual’s adjustment to the environment whereas the duty of

reasonable modification requires change of environment that would accommodate a large

number of disabled individuals.7 Accordingly, claims under Titles II and III generally seek class

action resolution, but claims under Title I rarely seek class action resolution.

       The operators of public entities and public accommodations must go to greater lengths to

make their services accessible to the disabled people in general than the employers for individual

disabled employees because the duty of reasonable modification is higher level of obligation

than the duty of reasonable accommodation. Title I of the ADA mandates covered entities to

provide reasonable accommodation to qualified individual with a disability unless the

accommodation would impose an undue hardship.8 Titles II and III require public entities and

public accommodations to make reasonable modifications unless the modification would



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fundamentally alter the nature of the goods or services provided.9 While undue hardship can be

demonstrated when an action requiring significant difficulty or expense, proof of fundamental

alteration requires additional elements-- endangerment of essential elements, such as a program’s

viability or effectiveness. Also, only the duty of reasonable modification requires achieving

most integrated setting, implying a greater duty to be inclusive.

       The distinctions between the two terms have very important legal ramifications for

accurate understanding and application of the legal terms provide optimal strategies for legal

counselors who bring or defend a lawsuit. Since reasonable accommodation is geared toward

meeting individual needs, legal counsels who bring lawsuits under Title I should seek individual

resolutions. Reasonable modification, on the other hand, requires making changes to provide

accessibility of services and goods large constituencies to the extent the change does not

fundamentally alter the nature of business. Legal counsels pleading under Titles II or III would

be wise to seek class resolutions.



I. REASONABLE ACCOMMODATION AND REASONABLE MODIFICATION ARE TWO
    DISTINCTIVE TERMS UNDER THE RULES OF STATUTORY CONSTRUCTION.


   A. ―Accommodation‖ And ―Modification‖ Differ In The Plain Meanings.

       The starting point in statutory construction is to determine the legislative intent from the

language of the statute, and the statutory words should be given the meaning intended by the

lawmakers. Court’s construction of statutory terms must begin with ―the language of the

statute.‖10 Where the plain, ordinary meaning of the statutory language provides a clear answer,

the analysis must end there,11 and courts do not search for legislative intent beyond the express

terms of the statute.12 In other words, words used in a statute normally must be given their usual,



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natural, plain, ordinary, and commonly understood meaning in the absence of any indication to

the contrary.13 If the statute does not sufficiently define a word used within a statute, the court

may consider all known definitions of the word, including dictionary definitions.14

―Accommodation‖ is defined as ―something supplied for convenience or to satisfy a need‖ or

―the providing of what is needed or desired for convenience.‖15 Therefore, one could

legitimately argue that in the context of Title I of ADA, the term accommodation means

providing or supplying to satisfy the need of disabled individuals. On the other hand,

―modification‖ is defined as ―the making of a limited change in something; also the result of

such a change.‖16 In the context of Titles II and III of ADA, it means making changes and

resulting in changes of policies and/or methods of operations. These are two distinct meanings

implying different actions.

       Dictionary definitions are not necessarily controlling, and recourse to such definitions is

unnecessary where the legislative intent may be gathered readily from a reading of the statute. 17

Although some may argue that because the two terms—accommodation and modification—

under Titles I, II, and III share the common purpose of prohibiting disability-based

discrimination and are applied to describe the action that would achieve the same goal, they

should be constructed as the same terms. However, the legislative decision to choose these two

terms, instead of one, indicates that those two terms imply distinctive meanings. Court may

extend or restrict the ordinary and usual meaning of the words employed in the statute in order to

give effect to the legislative intent. However, this would be done only when the statutory

language is uncertain or ambiguous and extension or restriction of the words being construed is

necessary to produce a reasonable result in harmony with purpose of the act.18 Here, the use of

the two terms—accommodation and modification—presents no uncertainty or ambiguity.



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Therefore, there would be no justification for the court to go beyond the ordinary, plain meaning

of the words.



   B. Distinct Applications Of The Terms—―Reasonable Accommodation‖ In Workplace And
      ―Reasonable Modification‖ In Public Entities And Public Accommodations—Indicate
      That They Have Different Implications.


       The title of a statute and the heading of a section are tools available for the resolution of a

doubt about the meaning of a statute.19 Where the legislature includes particular language in one

section of statute but omits it in another section of the same act, it is presumed that the legislature

acted purposefully in including or excluding that particular subject.20 Where the legislature has

carefully employed a term in one place in a statute and excluded it in another, it should not be

implied where excluded.21 ―Reasonable accommodation‖ is a term of art used only under the

Title I of ADA, and ―reasonable modification‖ is a term of art used only under the Titles II and

III of ADA. The facts that ―reasonable accommodation‖ is included in Title I but not in Titles II

or III, and that ―reasonable modification‖ is included in Titles II and III but not in Title I imply

the legislative intent to distinguish the use of those two terms.

       The duty of reasonable accommodation applies the employers in workplace, and the duty

of reasonable modification applies to public entities and public accommodations. Under the

maxim ―expression unius est exclusion alterius,‖22 the specification of one particular class in a

statute excludes all other classes.23 The expression of one or items of a class implies the

exclusion of others that are not expressed. Therefore, where a statute enumerates the subjects or

things on which it is to operate, or the persons affected, it is to be construed as excluding from its

effect all those not expressly mentioned.24 Likewise, where a statute directs the performance of

certain things by specified means or in a particular manner or by a particular person or class of

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persons, it implies that the required performance not be done otherwise or by a different person

or class of persons. Therefore, under this rule of construction, one may reasonably argue that by

placing only ―reasonable accommodation‖ in Title I, i.e. workplace, it is excluding duty of

―reasonable modification‖ as applied to employers in workplace. Similarly, by placing only

―reasonable modification‖ in Titles II and III, it is excluding the duty of ―reasonable

accommodation‖ as applied to public entities and public accommodations. The statutory

construction rule that the inclusion of certain classes implicitly excludes other classes is

employed only to aid in determining the drafter’s intent; it should not be applied when context

and public policy contradict it. Here, the context and public policy are not contradicted but

rather enhanced by applying the terms—―reasonable accommodation‖ and ―reasonable

modification‖—as written, in two distinctive context of application. Employers must reasonably

accommodate the needs of their individual employees while public entities and public

accommodations must reasonably modify their policies to increase access to the benefits of their

services.



C. Legislative History—The Object And Policy of the ADA—Manifests The Original
   Congressional Intent To Distinguish The Two Terms.


       The language of a statute must be construed in accordance with its meaning at the time of

its enactment. The phrase ―reasonable accommodation‖ originated in employment regulations

issued pursuant to section 504 of the Rehabilitation Act of 1973; however, the word,

―accommodation‖ has been used generically outside the employment context to describe

individualization of opportunities for handicapped people.25 In a 1983 report tracing the purpose

and history of the reasonable accommodation concept, the United States Commission on Civil



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 Rights defined the term as ―providing or modifying devices, services, or facilities or changing

 practices or procedures in order to match a particular person with a particular program or activity.

 Individualizing opportunities is this definition's essence.‖26 Under this definition, the gist of a

 reasonable accommodation is an assessment of the particular abilities of any one person. ―The

 reasonable accommodation should be tailored to the needs of the individual and the requirements

 of the job.‖27 Removing environmental barriers is only a precondition to individualization.28

 This is a contrast from the requirements under ―reasonable modification,‖ which does require

 removing barriers as an essential element. One may note that removing barriers tends to be a

 long-term change that presents considerations of costs, planning, and implementation different

 from those for individualized accommodation.29 Most significantly, removal does not depend on

 the presence of any specific individual.30



II. THE DUTY OF REASONABLE ACCOMMODATION REQUIRES AN INDIVIDUALISTIC
      APPROACH WHEREAS THE DUTY OF REASONABLE MODIFICATION REQUIRES
                      AN ACROSS-THE-BOARD APPROACH.


 A. The Duty Of Reasonable Accommodation Aims To Provide An Individual Level Of Access
    To A Qualified Employee Or Potential Employee With Disabilities Whereas The Duty Of
    Reasonable Modification Aims To Provide A General Level Of Access To Large
    Constituencies.


        A reasonable accommodation is defined as "any change in the work environment or in

 the way things are customarily done that an individual with a disability [would] enjoy equal

 employment opportunities."31 The ADA recognizes the need for individualized adjustments to

 facilitate one-to-one matching of jobs and people with disabilities that the concept of reasonable

 accommodation represents.32 Basically, under the Act, reasonable accommodation includes:




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   (A) making existing facilities used by employees readily accessible to and usable by
       individuals with disabilities; and
   (B) job restructuring, part-time or modified work schedules, reassignment to a vacant
       position, acquisition or modification of equipment or devices, appropriate adjustment or
       modifications of examinations, training materials or policies, the provision of qualified
       readers or interpreters, and other similar accommodations for individuals with
       disabilities.33


       In Southeastern Community College v. Davis, the U.S. Supreme Court analyzed

reasonable accommodation as the means for matching people with varying abilities to programs

with varying requirements.34 The Davis opinion suggests a view of accommodation, in the

particular context of higher education, as a process of individualizing opportunities where

possible and reasonable in light of all the circumstances.35 Similarly, in the context of

employment, disabled people are entitled to have their individual abilities considered by an

employer36 in light of available reasonable accommodations.37 Since no person, disabled or not,

is entitled to a particular job, non-discrimination merely means that disabled people may not be

rejected solely because of their disability.38 By the same token, because the employer must

benefit from the employee’s work, reasonable accommodation in the employment context must

permit the meeting of the employer’s essential needs as well as allowing the employee to

compete.39 The language of federal regulations makes clear that the examples of reasonable

accommodation do not describe all possible accommodation but rather, includes those that make

the workplace accessible.40 The objective of reasonable accommodation is to provide each

individual with a ―meaningful opportunity‖ to participate.41 One may note that the term

―meaningful opportunity‖ is intended to encompass the concept of equivalent, as opposed to

identical, services and to acknowledge the fact that in order to meet the individual needs of

disabled persons to the same extent that the corresponding needs of non-disabled persons are met,

adjustments to regular programs or the provision of different programs may sometimes be

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necessary.42 Equivalence may be achieved by accommodations that permit a disabled person to

perform essential functions or meet essential eligibility requirements of a program or activity

instead of equal participation in all incidental facets of a program or activity.43

               While the term ―reasonable accommodation‖ is extensively defined in ADA and

federal regulation in which it is clear that individual approach is required to satisfy the mandate,

the term ―reasonable modification‖ is not clearly defined in ADA or the federal regulations.

Titles II and III of ADA prohibits any disability-based discrimination by any public entity and

public accommodations. These rules contain a sweeping general rule that prohibits

discrimination ―on the basis of disability in the full and equal enjoyment of the goods, services,

facilities, privileges, advantages, or accommodations…‖44 Therefore, public entities and public

accommodations owe the general public, not each individuals, the accessibility of their goods,

services, and privileges. Their policies and responsibilities are geared toward a general level of

access to large constituencies. This is evident in how lawsuits are brought under ADA. Claims

under Titles II and III are generally brought as class actions, and employment cases under Title I

of ADA rarely seek class action resolution unless a general employment policy is challenged.45



B. The Duty Of Reasonable Accommodation Requires Supporting The Disabled Individual’s
   Adjustment To The Environment Whereas The Duty Of Reasonable Modification Requires
   Change Of Environment That Would Accommodate A Large Number Of Disabled
   Individuals.


       The reasonable accommodation must be made in all job-related processes:

accommodations that are needed to ensure equal opportunity in the application process, i.e.

enable a qualified applicant with a disability to be considered for the position such qualified

applicant desires46; accommodations that enable an individual with a disability to perform the



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position's essential functions, such as making existing facilities used by employees readily

accessible to and usable by individuals with disabilities as well as job restructuring, part-time or

modified work schedules, reassignment to a vacant position, acquisition or modification of

equipment or devices, appropriate adjustment or modifications of examinations, training

materials or policies, the provision of qualified readers or interpreters, and other similar

accommodations for individuals with disabilities47; and accommodations that enable an applicant

or employee with a disability to enjoy benefits and privileges of employment equal to those

enjoyed by employees without disabilities.48

       While numerous resources are available to explain the meaning and extent of application

of ―reasonable accommodation,‖ no direct ruling is available to guide us to understand the

difference, if any, between the implications of reasonable accommodation and reasonable

modification. A public accommodation must make reasonable modifications in policies,

practices, or procedures, when the modifications are necessary to afford the goods, services,

facilities, privileges, advantages, or accommodations to individuals with disabilities.49 One area

of law that does make a clear distinction between accommodation and modification is that in

special education. The Individuals with Disabilities Education Act (―IDEA‖) governs how states

and public agencies provide special education services to children with disabilities between age 0

and 21 who qualify for special education services. Children with disabilities who qualify for

special education receive automatic protection by Section 504 of the Rehabilitation Act of 1973

and under the ADA. State governments and entities that implement IDEA make it clear that

accommodation and modification are two very distinct terms.50, 51 In the context of special

education, accommodations do not change what is measured in evaluation, i.e. no change of core

element, but rather supporting the disabled individual in a way that he/she can effectively take



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the exam.52 Modifications, on the other hand, definitely change or alter what is being measured,

i.e. change of the essential element of the examination.53 Although these implications have no

direct control over applications of reasonable accommodation and reasonable modification under

Titles of I, II, and III of ADA, the usage of these terms in two different statutes should be

consistent with each other since the qualified individuals under IDEA would be also be qualified

under ADA, and both statutes seek to achieve the same goal—to eliminate discrimination on the

basis of disability.



III. THE OPERATORS OF PUBLIC ENTITIES AND PUBLIC ACCOMMODATIONS MUST
     GO TO GREATER LENGTH TO MAKE THEIR SERVICES ACCESSIBLE TO THE
 DISABLED INDIVIDUALS IN GENERAL THAN THE EMPLOYERS FOR INDIVIDUAL
 DISABLED EMPLOYEES BECAUSE THE DUTY OF REASONABLE MODIFICATION IS
        HIGHER LEVEL OF OBLIGATION THAN THE DUTY OF REASONABLE
                            ACCOMMODATION.


            a. ―Fundamental Alteration‖ Is A Higher Standard To Meet Than ―Undue

                Hardship.‖

        The Title I of the Americans with Disabilities Act (ADA) requires covered entities to

provide a ―reasonable accommodation‖ to the known physical or mental limitations of an

otherwise qualified individual with a disability, and prohibits such entities from denying

employment opportunities to applicants or employees on the basis of the need to provide such an

accommodation, unless the entities can demonstrate that the accommodation would impose an

―undue hardship.‖ 54 In other words, covered entity is not required to implement any job

accommodation that the entity can demonstrate would impose an ―undue hardship‖ on the

operation of its business.55 An employer may not deny an employment opportunity to an

otherwise qualified job applicant or employee with a disability based on the employer's need to



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reasonably accommodate the individual's physical or mental impairment.56 Consequently, an

applicant or employee's need for an accommodation cannot enter into an employer's decision

regarding hiring, discharge, promotion or other similar employment decisions, unless the

accommodation would impose an undue hardship on the employer.57

       The term ―undue hardship‖ is defined as ―an action requiring significant difficulty or

expense,‖ when considered in light of certain factors -- the nature and cost of the

accommodation; the overall financial resources and workforce of the facility involved; the

overall financial resources, number of employees, and structure of the covered entity; and the

type of operations of the covered entity, including the composition and functions of its workforce,

and the administrative and fiscal relationships between the facility and the covered entity. 58

According to the Senate and House committee reports, ―an action requiring significant difficulty

or expense‖ means ―an action that is unduly costly, extensive, substantial, disruptive, or that will

fundamentally alter the nature of the program.‖59 In defining ―undue hardship,‖ Congress

rejected the notion of any ―per se‖ level of difficulty or expense that would constitute ―undue

hardship.‖60 It voted down an amendment that would have created a presumption that a

suggested accommodation would involve undue hardship if it exceeded ten percent of the annual

salary for the position in question,61 and indicated that undue hardship is intended to be a ―much

higher standard‖ than the ―readily achievable‖ requirement applied in title III of the Act62 and ―a

significantly higher standard‖ than the obligation to accommodate religious beliefs under title

VII of the Civil Rights Act of 1964.63 The resolution of these issues and the statutory list of

factors to be considered make it clear that ―undue hardship‖ is a concept that varies according to

the impact of particular proposed accommodation on a particular business, with more

accommodation being required of larger entities with more resources.64



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       Public entities and public accommodations are required to make ―reasonable

modifications‖ to policies, practices, and procedures to make their goods and services accessible

for people with disability. However, an entity is not required to make any modification that

would ―fundamentally alter the nature‖ of such goods or services. Courts have made numerous

rulings on when a modification is necessary: alterations are not required if they would endanger

a program’s viability65; ―massive‖ or ―extremely expensive‖ changes are not required66;

modifications involving a ―major restructuring‖ of an enterprise or that ―jeopardize the

effectiveness‖ of a program are not required67; modifications are not required if they would so

alter an enterprise as to create, in effect, a new program68. Although no case law has ruled on a

direct comparison between a fundamental alteration and undue hardship, it has been suggested

that the fundamental alteration limit is a much higher standard than the undue hardship in the job

context.69 This is a reasonable suggestion because, as suggested by legal commentators,

fundamental alteration requires a substantial change in the primary purpose or benefit of a

program or impairment of essential elements thereof70, 71 whereas one does not have to

demonstrate a threat or change of the core components of the program to prove undue hardship.

Therefore, public entities or public accommodations must meet a higher burden to deny a request

of reasonable modification of their policies to allow access by disabled people than employers to

deny a request of reasonable accommodation by their employees. However, this dynamic

changes when one examines the level of duty owed by each entity to each disabled individual.

       Employers need to do more for their individual employees than public accommodations

to their individual patrons. This is a sensible result since an employer and employees have a

continuing relationship in which the employer has the opportunity to learn the individualized

needs of its disabled employee and determine the most effective way to harmonize those needs



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with the essential functions of the job.72 Therefore, under the reasonable accommodation

standard, employers often have to purchase special equipment for use by the disabled employee73

and/or restructure an existing job.74 A public accommodation, however, may only interact with a

particular disabled patron once, and thus it cannot be expected to modify its policies in such a

way as to accommodate every individualized need.75 It is more sensible to make general

modifications that provide access to most people in most cases. As the Department of Justice

regulation specifically provides, unless a communications issue is involved, public

accommodations have no obligations to purchase special equipment or change their inventory to

make reasonable modification.76



           b. Only The Duty Of Reasonable Modification Requires Achieving Most Integrated
              Setting, Implying A Greater Duty To Be Inclusive.


       The purpose of the ADA is to prohibit exclusion and segregation of individuals with

disabilities and the ―denial of equal opportunities enjoyed by others based on, among other

things, presumptions, patronizing attitudes, fears and stereotypes about individuals with

disabilities."77 The ADA requires that individuals with disabilities enjoy an equal opportunity to

participate in the mainstream of available programs, services and enterprises. They may not be

precluded from participating in programs or activities to the extent that individuals are capable,

and not restrict their participation to separate programs.78 What is noticeable in reviewing

Department of Justice regulations under the ADA is that ―most integrated setting‖ is required

only by the public accommodation.79 While employers are prohibited to discriminate their

employees on the basis of disability, the policy of imposing obligation to achieve most integrated

setting may be too much burden on the employers’ part. Employers are obligated to provide



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meaningful opportunity for their disabled employees, but disabled employees are not entitled to a

particular job on account of their disabilities. Employers are not obligated to give preference to

disabled people based on their disabilities. Public entities and public accommodations differ in

this respect. Although public accommodations benefit from their patrons with disability, they

are not entitled to choose their patrons the way the employers choose their employees.

Furthermore, the public policy requiring public accommodations to achieve most integrated

setting may be consistent with the goals of operators of public accommodations to prosper in the

business because the policy would draw more patrons for public accommodations.



                                             CONCLUSION

            The ADA prohibits disability-based discriminations. Title I requires employers to

provide ―reasonable accommodation‖ for otherwise qualified employees or potential employees.

Titles II and III require public entities and public accommodations to make ―reasonable

modifications‖ in policies, practices, or procedures for the disabled individuals. Although the

two terms are often used interchangeably by courts and government agencies, many sources

indicate that they are two distinct terms under the rules of statutory construction. The duty of

reasonable accommodation requires an individualistic approach whereas the duty of reasonable

modification requires an across-the-board approach. The duty of reasonable modification is a

higher level of obligation than the duty of reasonable accommodation, warranting greater efforts

on the part of public accommodations to increase accessibility by disabled patrons.

1
  42 U.S.C.A. §12112(b)(5)(A)
2
  42 U.S.C.A. §12182 (b)(2)(A)(ii); 28 CFR § 36.302(a)
3
  Alexander v. Choate, 469 U.S. 287, 299-301 (1985).
4
  Merriam-Webster OnLine Dictionary, available at: http://www.merriam-webster.com/dictionary/accommodation;
Merriam-Webster OnLine Dictionary, available at http://www.merriam-webster.com/dictionary/modification
5
  H.R. REP. NO. 485, 101st Cong., 2d Sess., pt.3, at 39 (1990)


                                                                                                         16
6
  U.S. Commission on Civil Rights, Accommodating the Spectrum of Individual Abilities 102, 103 (1983), available
at: http://www.law.umaryland.edu/marshall/usccr/documents/cr11081.pdf
7
  29 C.F.R. pt 1630; U.S. Commission on Civil Rights Supra Note at 122.
8
   42 U.S.C.A. §12112(b)(5)(A)
9
  42 U.S.C.A. §12182 (b)(2)(A)(ii); 28 CFR § 36.302(a)
10
   Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 438 (1999), citing Estate of Cowart v. Nicklos Drilling Co., 505
   U.S.469, 475 (1992)
11
   Id. Citing Connecticut Nat. Bank v. Germain, 503 U.S. 249, 254 (1992)
12
   Greene v. State, 977 S.W.2d 192, 197 (1998)
13
   Burns v. Alcala, 420 U.S. 575, 580-1 (1975)
14
   In re Nottingham’s Estate, 175 N.W.2d 640, 644 (1970)
15
   Merriam-Webster OnLine Dictionary, available at: http://www.merriam-webster.com/dictionary/accommodation
16
   Merriam-Webster OnLine Dictionary, available at http://www.merriam-webster.com/dictionary/modification
17
   People ex rel. Hamilton v. City of Santa Barbara, 205 Cal.App.2d 5012, 504(1962).
18
   Hart v. Arganese, 313 P.2d 756, 759 (1957)
19
   Zimmerman v. Oregon Dept. of Justice, 170 F.3d 1169, 1173 (C.A. 9, 1999)
20
   State v. Hawk, 170 S.W.3d 547, 551 (2005)
21
   Commissioner of Correction v. Superior Court Dept. of Trial Court For County of Worcester, 842 N.E.2d 926,
   928-9 (2006)
22
   Catano v. Local Bd. No. 94 Selective Service System, 298 F.Supp. 1183, 1186 (1969)
23
   Bennett v. Iowa Dept. of Natural Resources, 573 N.W.2d 25, 28 (1997)
24
   Herzberg v. Finch, 321 F.Supp. 1367, 1369 (1971).
25
   U.S. Commission on Civil Rights, supra Note 6 at 102
26
   Id.
27
   H.R. REP. NO. 485, supra Note 5
28
   Id.
29
   U.S. Commission on Civil Rights at 103
30
   Id
31
   29 C.F.R. pt 1630
32
   Robert L. Burgdorf Jr. The Americans with Disabilities Act: Analysis and Implications of a Second-Generation
Civil Rights Statute, 26 Harv. C.R.-C.L. L. Rev. 413, 461 (1991), citing S. REP. NO. 116, 101st Cong., 1st Sess. 31
(1989); H.R. REP. NO. 485, 101st Cong., 2d Sess., pt. 2, at 62 (1990); H.R. REP. NO. 485, 101st Cong., 2d Sess., pt.
3, at 39 (1990). The first two reports both declare that reasonable accommodation involves a ―fact-specific, case-by-
case approach;‖ the latter report, that of the House Committee on the Judiciary, states that ―[a] reasonable
accommodation should be tailored to the needs of the individual and the requirements of the job.‖
33
   42 U.S.C.A. §12111(9)
34
   Southeastern Community College v. Davis, 442 U.S. 397, 410 (1979)
35
   U.S. Commission on Civil Rights, supra Note 6
36
   28 C.F.R. §4153 (1982); 45 C.F.R. §84.12(a); 29 C.F.R. §1613.704(a); 41 C.F.R. §60-741.5(d) (1982).
37
   U.S. Commission on Civil Rights, supra Note 6
38
   Id.
39
   Id.
40
   Id.
41
   Id. at 122
42
   45 C.F.R pt 84, app. A., p 297.
43
   U.S. Commission on Civil Rights, supra note 6
44
   42 U.S.C.A. §12182(a)
45
   Chris Baker, ADA Access: A New Practice Area For Employment Lawyers? Construction, March 1999, available
   at
   http://www.constructionweblinks.com/Resources/Industry_Reports__Newsletters/March_1999/march_1999.html
46
   42 U.S.C.A. §506
47
   42 U.S.C.A. §12111 (9)
48
   29 C.F.R. §1630.2(o)(1)
49
   42 USCA §12182 (b)(2)(A)(ii); 28 CFR § 36.302(a)


                                                                                                                 17
50
   Maine Department of Education, Maine’s Comprehensive Assessment System, available at
   http://www.maine.gov/education/mea/accommodif.htm
51
   Texas Project First—Fmilies, Information, Resources, Support & Training, Accommodations vs. Modifications,
   available at: http://www.texasprojectfirst.org/ModificationAccommodation.html
52
   Maine Department of Education
53
   Id.
54
   42 U.S.C.A. §12112(b)(5)
55
   Id.
56
   29 C.F.R. pt 1630
57
   Id.
58
   42 U.S.C.A. §12111(10)
59
   Burgdorf, supra Note 32 at 461
60
   H.R. REP. NO. supra Note 5 at 41
61
   136 CONG. REC. H2470, H2475 (daily ed. May 17, 1990).
62
   H.R. REP. NO. 485, supra Note 5 at 40
63
   Id at 68.
64
   The report of the House Judiciary Committee cites with approval, Nelson v. Thornburgh, 567 F. Supp. 369 (E.D.
Pa. 1983), in which the court ruled that various accommodations (including the use of readers, brailled forms, and a
computer that stores and retrieves information in braille) needed by employees with visual impairments would not
impose an undue hardship even though their costs would be substantial, because the additional dollar burden of the
accommodations would represent only a small fraction of the agency's budget. H.R. REP. NO. 485, 101st Cong., 2d
Sess., pt. 3, at 40 (1990).
65
   New Mexico Ass’n for retarded Citizens v. New Mexico, 678 F.2d 847, 855 (10th Cir. 1982)
66
   Dopico v. Goldschmidt, 687 F.2d 644, 653 (2d Cir. 1982)
67
   Rhode Island handicapped Action Comm. v. Rhode Island Pub. Transit Autho., 549 F. Supp. 592, 607 (1982)
68
   Doe v. Colautti, 592 F.2d 704, 707-9 (3d Cir. 1979)
69
   Burgdorf supra Note 32 at 474
70
   Id, at 475
71
   Robert L. Burgdorf Jr. ―Equal Members of the Community‖: The Public Accommodations Provisions of the
   Americans with Disabilities Act, 64 Temp. L. Rev. 551, 561 (1991), citing Burgdorf & Bell, Eliminating
   Discrimination Against Physically and Mentally Handicapped Persons: A Statutory Blueprint, 8 Mental &
   Physicial Disabilities L.Rep. 64, 70 (Jan./Feb. 1984)
72
   Baker, supra Note 45
73
   29 CFR § 1630.2(o)(2); EEOC Technical Assistance Manual III.3.10.6
74
   Id.
75
   Id.
76
   42 C.F.R. § 36.306
77
   ADA Compliance Guide ¶521 ―Most Integrated Setting‖ Required
78
   28 C.F.R. §36.203
79
   Id.




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