Does the Americans with Disabilities Act require a state legislature, like Maryland's General Assembly, to accommodate people with disabilities?

Plain-English summary

The chair of the Maryland Advisory Council for Individuals With Disabilities asked the Attorney General whether the newly effective Americans with Disabilities Act (ADA) applied to the Legislative Branch of Maryland's state government, specifically whether the General Assembly had to provide access for hearing-impaired people at public meetings and for visually-impaired people to printed material.

The Attorney General concluded that the ADA's Title II, which bars public entities from discriminating against people with disabilities, applied to the Legislative Branch, including the House and Senate. Neither the ADA nor its regulations named legislatures specifically, but the opinion relied on the U.S. Department of Justice's own interpretation that Title II reached all activities of state and local government, legislative branches included. The opinion concluded the Legislative Branch had to furnish appropriate auxiliary aids, interpreters, assistive listening systems, or materials in alternative formats, on request, though it did not have to equip every meeting or every document in advance, and did not have to take steps that would fundamentally alter its activities or create an undue administrative or financial burden.

Currency note

This opinion was issued in 1992. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Did the ADA apply to the Maryland legislature in 1992, or only to executive-branch agencies? The opinion concluded the ADA's Title II applied to the Legislative Branch as well, including the respective Houses of the General Assembly, based on the U.S. Department of Justice's interpretation that Title II covers all state and local government activities.

What kind of help was Maryland's Legislative Branch required to provide to hearing-impaired or visually-impaired people under this opinion? The opinion described obligations to furnish appropriate auxiliary aids on request, such as qualified interpreters, assistive listening systems, and written materials for the hearing impaired, and qualified readers, taped texts, or braille material for the visually impaired.

Did every public meeting have to be set up in advance for accessibility under this opinion? No. The opinion stated there was no requirement that every public meeting be equipped to accommodate the hearing impaired or that all printed material be available in an accessible format in advance; officials had to be prepared to accommodate such needs when a request was made.

Background and statutory framework

Congress enacted the ADA in 1990, and Subtitle A of Title II, the portion relevant to the inquiry, became effective January 26, 1992. It barred a public entity from excluding a qualified individual with a disability from its services, programs, or activities, or subjecting that person to discrimination because of disability. The U.S. Attorney General's implementing regulations, codified at 28 C.F.R. Part 35, required public entities to make reasonable modifications to policies and practices unless doing so would fundamentally alter the service involved, to conduct activities in the most integrated setting appropriate, and to ensure communications with people with disabilities were as effective as communications with others, including by furnishing auxiliary aids and services where necessary.

The opinion found that although the ADA and its regulations did not specifically list legislatures as "public entities," the U.S. Department of Justice had already concluded Title II covered all activities of state and local government, including legislative branches, and that even the smallest governmental units were covered so long as the government as a whole had at least 50 employees. Applying that reasoning, the opinion concluded the Legislative Branch was obligated to identify problems people with disabilities encountered in its activities, ranging from employment to access to buildings, information, and public meetings, and to give primary consideration to a disabled individual's own choice of auxiliary aid unless an equally effective alternative was available or the request would cause an undue burden.

Citations and references

Statutes and regulations:

• 42 U.S.C. §12101 et seq., the Americans with Disabilities Act
• §12132, ADA prohibition on disability discrimination by public entities
• §12102(2)(A), ADA definition of "disability"
• §12131(1)(A) and (B), ADA definition of "public entity"
• §12201(b), ADA preemption of less-protective state and local law
• §12133, ADA Title II remedies provision
• 29 U.S.C. §794a and 42 U.S.C. §§2000d et seq. and 2000e-5, incorporated remedies provisions
• 42 U.S.C. §12134, directive to issue implementing regulations
• 56 Fed. Reg. 35716-23 (July 26, 1991), the implementing regulations as published
• 28 C.F.R. Part 35 and its subsections (§§35.102, 35.104, 35.105, 35.106, 35.107, 35.130, 35.140, 35.149, 35.150, 35.160, 35.161, 35.164), Title II implementing regulations

Cases: None cited in this opinion.

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1992/Volume77_1992.pdf (this opinion appears at printed page 18 of the bound annual volume; Maryland's site does not publish a standalone PDF of this opinion)

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Civil Rights and Discrimination - Disability - General Assembly - Applicability of Americans With Disabilities Act to Legislative Branch

October 14, 1992

Ms. Cindy Mease, Chair
Maryland Advisory Council for
Individuals With Disabilities

You have requested our opinion concerning the application of the federal Americans with Disabilities Act ("ADA") to the Legislative Branch of State Government. In your letter, you specifically asked about access by the hearing impaired to public meetings and by the visually impaired to printed material.

For the reasons stated below, we conclude that the ADA applies to the Legislative Branch, including the respective Houses of the General Assembly. The ADA and its implementing regulations contemplate a process in which problems of access by the individuals with disabilities are identified and a plan is developed to address these issues. With respect to the specific concerns you mentioned, it is our opinion that on request the Legislative Branch has the obligation to provide appropriate auxiliary aids to the hearing and visually impaired to enable such individuals to understand and participate in the legislative process.

I

Background

The Americans With Disabilities Act was enacted by Congress in
1990. Pub. L. No. 101-336, 104 Stat. 327, 42 U.S.C. §12101 et seq. It was approved by the President on July 26 of that year.

  The central provision of Subtitle A of Title II, which is the portion

of the ADA relevant to your inquiry, states as follows:

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

§12132. The term "disability" includes a "physical or mental impairment which substantially limits one or more major life activities."
§12102(2)(A). Among the entities encompassed in the term "public entity" are "any State or local government" and any instrumentality of such governments. §12131(1)(A) and (B). The ADA preempts State and local laws that do not afford "greater or equal protection for the rights of individuals with disabilities than are afforded by [the ADA]."
§12201(b).

Violations of the subtitle are subject to the remedies prescribed by the Rehabilitation Act of 1973, which incorporates the remedies of the Civil Rights Act of 1964. See §12133. See also 29 U.S.C. §794a and 42 U.S.C. §§2000d et seq. and 2000e-5. Except for a provision on regulations, which took effect immediately, the subtitle became effective January 26, 1992. Pub. L. No. 101-336, §205.

As required by 42 U.S.C. §12134, the Attorney General of the United States has promulgated regulations to implement Subtitle A of Title II. 56 Fed. Reg. 35716-23 (July 26, 1991), codified at 28 C.F.R. Part 35. The regulations, which took effect January 26, 1992, broadly prohibit discrimination by any public entity against a qualified person with a disability on the basis of disability. 28 C.F.R. §35.130(a). There are specific prohibitions on discrimination against such persons in matters of employment and access to facilities. §§35.140(a) and 35.149.'

Among the general obligations of public entities is the following:

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 modification would fundamentally alter the nature of the service, program, or activity.

§35.130(b)(7). Public entities also have an obligation to conduct activities in the most integrated setting appropriate to the needs of persons with disabilities. §35.130(d). Additionally, they are obligated to "operate each service program or activity, when viewed in its entirety," in such a way as to make it "readily accessible to and usable by individuals with disabilities." §35.150(a). However, there is no requirement that each facility be accessible or that any action be taken that would threaten or destroy the historic significance of historic property. §35.150(a)(1) and (2).

With respect to matters of communications, a public entity's overall duty is to "take appropriate steps to ensure that communications with applicants, participants, and members of the public with disabilities are as effective as communications with others." §35.160(a). The regulation also imposes the following specific obligation:

A public entity shall furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity conducted by a public entity.

§35.160(b)(1). In deciding which aid is appropriate, the public entity is to give primary consideration to the request of the individual with the disability. §35.160(b)(2). Telecommunication devices for the deaf ("TDD") or equally effective alternatives may be required for the telephone system. §35.161. However, in matters of program accessibility and communications, a public entity need not take any action that would fundamentally alter the nature of the activity or result in an undue administrative or financial burden. §§35.150(a)(3) and 35.164.

Within a year of the effective date of the regulations, a public entity is to evaluate its services, policies, and practices and make necessary modifications. In conducting the evaluations, a public entity is to accept comments by interested individuals, including organizations representing people with disabilities. §35.105(a) and (b). A public entity is also required to disseminate information about the ADA's applicability to the entity. §35.106. A public entity that employs at least 50 people is to designate at least one employee to coordinate compliance, including complaints of noncompliance. Further, such an entity is to adopt and publish grievance procedures for the prompt and equitable resolution of complaints alleging a violation of the regulations.
§35.107.

II

Applicability to Legislative Branch

Neither the ADA nor the regulations specifically refer to the legislative branch of state governments as a "public entity." The Department of Justice, however, has concluded that Title II of the ADA applies to all activities of state and local government, including the legislative branch. See 56 Fed. Reg. at 35697 (analysis of 28 C.F.R.
§35.102). See also U.S. Department of Justice, Technical Assistance Manual, Title II of the Americans with Disabilities Act II-1.2000 ("Justice Department Manual"). In light of this interpretation, we likewise conclude that the Legislative Branch of Maryland government is a "public entity" subject to the ADA.

Whether the different elements of the Legislative Branch, i.e., House, Senate and staff agencies, may be regarded as separate public entities is not entirely clear. However, even the smallest units of a government are subject to all the requirements of the ADA so long as there are at least 50 employees in the government as a whole. Justice Department Manual, II-9.1000. As all states have at least 50 employees, all state departments, agencies, and other divisional units are subject to requirements applicable to public entities with 50 or more employees. Id.

Under the ADA and its regulations, the Legislative Branch is generally prohibited from discriminating against individuals with disabilities. Moreover, there is an obligation to make reasonable accommodations to facilitate the integration of such persons in the activities of the Legislative Branch. It is especially important that there be an ongoing process of consultation with people with disabilities or their representatives concerning their needs and appropriate ways to accommodate them.

As an initial matter, there needs to be an identification of specific problems that people with disabilities encounter in the activities of the Legislative Branch. This evaluation would encompass matters like employment; access to legislative buildings, information, and communications; and participation in public meetings. In deciding on appropriate ways to address identifiable problems in program accessibility or communications, the Legislative Branch need not take a particular action if it would result in an undue administrative or financial burden. 28 C.F.R. §§35.150(a)(3) and 35.164.

With respect to the specific issues of access by the hearing impaired to public meetings and of the visually impaired to printed materials, the ADA and regulations clearly contemplate that the Legislative Branch will facilitate access by furnishing appropriate auxiliary aids. See 28 CFR §35.160. In the case of the hearing impaired, these include qualified interpreters, written materials, and assistive listening systems. For the visually impaired, they include qualified readers, taped texts, and brailled material. §35.104. In determining the device to be used, a public entity must give "primary consideration" to the requests of individuals with disabilities.
§35.160(b)(2). The Justice Department advises as follows: "Primary consideration' means that the public entity must honor the choice, unless it can demonstrate that another equally effective means of communication is available, or that use of the means chosen would result in a fundamental alternation in the service, program, or activity or in undue financial and administrative burdens." Justice Department Manual, II-7.1100. As we understand the matter, there is no requirement that every public meeting be equipped to accommodate the hearing impaired or that all printed material be available in a form to accommodate suitable for the visually impaired. However, officials in the Legislative Branch must be prepared to accommodate such needs on request.

III

Conclusion

In summary, it is our opinion that the Legislative Branch of State Government is subject to the Americans with Disabilities Act. As regards the hearing and visually impaired, a reasonable accommodation must be made upon request to facilitate their access to the legislative process.

J. Joseph Curran, Jr.
Attorney General

Richard E. Israel
Assistant Attorney General

Jack Schwartz
Chief Counsel
Opinions and Advice

1
Employment is also subject to Title I of the ADA and, where Title I is inapplicable, to the federal Rehabilitation Act. §35.140.

2
It is our understanding that the Legislature is in the process of conducting such a self-evaluation. Of course, compliance with the obligations of the ADA is not excused during the period of self-evaluation.

3
It is our understanding that the Legislature has two TDDs and is now part of the State relay system, which enables the hearing-impaired to communicate by telephone.