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by Edward A. Schirick, C.P.C.U., C.I.C., C.R.M.
Laws and regulations create a variety of risks for camp directors to
manage. The Americans With Disabilities Act (ADA) presents an interesting
risk management challenge. The Act was passed in 1990 to give protection
against discrimination to individuals with disabilities. ADA is similar
to other national civil rights acts, which prohibited discrimination based
upon race, sex, national origin, age, and religion. Recently, some camp
professionals raised questions about camps and Title III of ADA as part
of the risk identification step in the risk management process.
The ADA has several Titles, or Sections, which include standards for
removing barriers for individuals with disabilities in employment, transportation,
public accommodations, public services, and telecommunications. Title
III of The Americans With Disabilities Act prohibits discrimination on
the basis of disability by public accommodations and commercial facilities.
The law requires that commercial facilities and places offering accommodations
to the public be designed, constructed, and altered in compliance with
the accessibility standards established by the Act.
Does Title III of The Americans With Disabilities Act
Apply to Camps and Conference Centers?
Maybe. Help determining if your camp is subject to Title III of the
ADA lies in the definition of Public Accommodations and Commercial Facilities.
The Act includes examples of entities covered by Title III including
an inn, motel, hotel, or other place of lodging (emphasis added); a park,
zoo, amusement park, or other place of recreation (emphasis added); a
nursery, elementary, secondary, or private school, or other place of education
(emphasis added); a day care center, or other social service establishment
(emphasis added); a gym, health spa, golf course, or other place of exercise
or recreation (emphasis added).
Camp businesses, which combine an entity named in the Act, such as private
school and camp, or day care and camp, and camps leasing their facilities
to groups for conferences and meetings, would appear to be included under
Title III without question.
While the ADA does not specifically include camps and conference centers
in their definition of Public Accommodations and Commercial Facilities,
the omnibus language "or other" in the Act, seems to clear up
any confusion. However, religious organizations are exempt from Title
III requirements.
If Your Camp and Conference Center Meets the Definition
of Title III, What Are Your Obligations?
The obligations are to remove barriers to the use of facilities and
to provide auxiliary aids or services for participants with disabilities.
These duties are equally the responsibility of the landlord and tenant.
An interesting problem develops when a Title III exempt religious organization
leases its facilities to a public entity, like a school or a private entity,
such as a local business. Since the ADA makes compliance equally the duty
of the landlord or tenant, religious organizations who don't comply with
Title III may find their market for rental groups diminished. Many public
schools and other organizations have operations guidelines, which prohibit
leasing of facilities that are not accessible to persons with disabilities.
So, even though not required to comply with Title III, religious organizations
voluntarily complying may find themselves in an advantageous rental situation,
if that is desirable.
Auxiliary aids and services are required by ADA to ensure effective
communication — for example, pertaining to individuals with hearing
or vision impairment, aids and services must include assistive-listening
devices, large-print materials, and sign language interpreters. Other
examples of safety equipment designed to remove barriers to the use of
facilities include a strobe light fire alarm in a room occupied by a hearing-impaired
person or a vibrating bed fire alarm in a room occupied by someone with
vision impairment.
There is a limitation on these requirements, however. ADA does not require
the removal of barriers or the provision of any auxiliary aid that would
result in an undue burden or in a fundamental alteration in the nature
of the goods or services provided by a public accommodation. Likewise,
removal of "barriers" is only necessary when it is readily achievable.
Readily achievable is defined in the Act to mean "easily accomplishable
and able to be carried out without much difficulty or expense."
If your camp meets the criteria of public accommodation — or commercial
facility under Title III — you would also be obliged to make all
newly constructed facilities accessible to persons with disabilities.
Likewise, all alterations to a facility that could affect the usability
of the facility must be made accessible. However, if the cost of the additional
alteration to enhance accessibility is more than 20 percent of the cost
of the original alteration, they are not required. State and local building
codes and local building inspectors are responsible for implementing these
aspects of the Act.
It is illegal to deny participation in your camp program and access
to your facilities to an individual with a disability covered by ADA.
However, ADA does allow public accommodations to take safety factors into
consideration when providing services to individuals with disabilities.
The ADA permits exclusion of a person with a disability, who poses a direct
threat to the health or safety of others. The threat must be based upon
objective safety standards not capable of being reduced or managed easily
by appropriate changes in your policies or procedures. ADA's standards
specify that these modifications to procedures and policies be "easily
accomplishable and able to be carried out without much difficulty or expense."
Can My Camp be Sued Over Actual or Alleged Violations
of Title III of the ADA?
Yes. An individual with a disability can sue a business when that individual
believes discrimination is about to occur. Private individuals may also
bring lawsuits and obtain court orders to stop discrimination they believe
is already taking place.
Individuals may also file complaints with the Attorney General who can
bring suits of general public interest, or where a "pattern of discrimination"
is alleged. In these instances, monetary damages and civil penalties may
be imposed. Civil penalties may not exceed $50,000 for a first violation
or $100,000 for a subsequent violation.
How Does My Camp Insurance Program Respond to an ADA
Title III Suit?
The risk of financial loss (fines, attorney's fees, cost of reasonable
modifications to accommodate individuals with disabilities, etc.) is probably
not covered (transferred) by a typical camp insurance program.
General liability insurance responds to liability for bodily injury,
damage to property of others, and personal and advertising injury liability
(i.e., libel, slander, false arrest, unlawful imprisonment, invasion of
the right of private occupancy, and certain infringement in advertising
your camp's goods and services) and would not respond to an allegation
of discrimination. Likewise, the available camp directors' professional
liability endorsements are either not designed to respond to claims of
discrimination, or specifically exclude liability arising out of the ADA.
Nonprofit directors' and officers' liability insurance, including employment
practices liability, is designed to respond to wrongful acts and typically
respond to some discriminatory acts in connection with employment. Unfortunately,
because nonprofit directors' and officers' policies don't have standardized
language, it is impossible to generalize about coverage for the ADA Title
III violations. However, there is a pattern among directors' and officers'
underwriters to exclude coverage.
Camp Obligations
Title III of The Americans With Disabilities Act presents certain risks
to camps, which may not have been previously identified in your risk management
plan. Camps appear to be subject to Title III requirements, although religiously
affiliated camps are exempt. Under these circumstances, your camp has
certain obligations to remove barriers to the use of your facilities and
include persons with disabilities in your programs. There are some limitations
on these requirements; among them is a threat to health and safety. Recognize,
in addition, that the risk of financial loss from noncompliance with Title
III of the ADA, includes expenses and civil penalties, which may not be
adequately insured (transferred) by a typical camp insurance program.
Necessary Steps
Before next summer, take some time to consider whether your camp business
qualifies as a Public Accommodation or Commercial Facility under the law.
Depending upon your conclusions, take the necessary steps to avoid and
reduce the risk of financial loss from non-compliance with the law.
If you want more information, the U.S. Department of Justice has considerable
information about Title III of The Americans with Disabilities Act on
the Internet through just about any search engine. An ADA Title III Compliance
Checklist is also available from the Job Accommodation Network, 800-526-7234
(V/TTY), or online at www.jan.wvu.edu.
Urgent
Insurance Issues
Editor's Note: Two concerns of significance related
to insurance have come to our attention recently. As camp
operators, you should be alert to these matters in your overall
risk management planning and in review of policies concerning
applications from campers who may require or request accommodation
under the Americans With Disabilities Act. The first of these
is highlighted in the accompanying article "Camps and
Title III of the Americans with Disabilities Act." Camps
are informed that the risk of financial loss (fines, attorney’s
fees, cost of reasonable modifications to accommodate individuals
with disabilities, etc.) is probably not covered (transferred)
by a typical camp insurance program. Check with your agent
concerning your coverage or lack of same.
Further, be aware of the need for prompt notification of
your insurance company related to potential claims for any
reason. See below.
Failure to Give Prompt Notice Voids Insurance Coverage
A nonprofit organization that failed to notify its insurance
company of a potential claim on a timely basis thereby forfeited
coverage under the insurance policy [Women’s Christian
Alliance v. Executive Risk Indemnity, 2003 WL 21961434 (E.D.
Pa.)].
The nonprofit organization in this case purchased a “Not-for-Profit
Organization Directors, Officers, and Trustees Insurance Policy,
Including Employment Practices Liability Coverage” from
Executive Risk Indemnity. During the policy period, an employee
was fired and later filed a discrimination complaint with
the state’s human rights commission. The executive director
of the nonprofit did not notify the insurance company at this
time. Sever months later, the human rights commission issued
a “right to sue” letter to the former employee,
and she sued in federal court. Only then, sixteen months after
the employee filed the original discrimination complaint,
did the nonprofit notify the insurance company.
The insurance company declined to cover the claim, including
legal fees and the $93,000 verdict that was ultimately issued
against the non-profit organization. The court upheld the
insurance company’s actions, finding that the policy
in this instance — like all policies — required
timely notice of any circumstance that could give rise to
a claim. And even though the state’s human rights commission
proceeding might not have been covered under the policy, still
the insurance company should have been alerted since the initiation
of that proceeding was a clear indication that litigation
might follow.
Reprinted from Non-Profit Legal & Tax Letter® |
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Originally published in the 2004 Winter issue
of The CampLine.
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