DOES THE AMERICANS WITH DISABILITIES ACT APPLY TO FRATERNITY HOUSES?

Daniel McCarthy, Adam Eckstein

The Americans with Disabilities Act (“ADA”) prohibits discrimination on the basis of disability in, among other things, employment, government and public accommodations.  The issue of whether the ADA applies to fraternity and sorority houses was addressed in the November, 1992 Fraternal Law.  This article will serve as an update on that article and as a reminder of the importance and applicability of the ADA on Greek organizations.

In general, the ADA protects the rights of those with disabilities.  The ADA defines an individual with a  disability as a person who has a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived as having such an impairment.  The specific impairments covered are not named in the ADA.

Title III of the ADA applies to “places of public accommodation.” Specifically, it reads: “No individual shall be discriminated against on the basis of a disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to) or operates a place of public accommodation.”¹  To be considered a place of public accommodation under Title III, (a) it must be operated by a private entity, (b) its operations must affect commerce, and (c) it must fall within one of twelve enumerated categories (including establishments serving food or drink; places of exhibition or entertainment; places of recreation; places of education; and places of exercise or recreation).

While fraternity and sorority houses arguably could be construed as places of public accommodation, Title III offers at least two exemptions that appear to exempt fraternities and sororities from Title III requirements.

Title III does not apply to “private clubs” or to “establishments exempted from coverage under Title II of the Civil Rights Act of 1964,” a reference to 42 U.S.C. § 2000a(e) which exempts “a private club or other establishment not in fact open to the public.  In addition, Title III does not apply to “residential structures.”  In a public letter to then-Senator Trent Lott, Assistant Attorney General Deval Patrick (now the Governor of Massachusetts) writing for the Department of Justice noted that a fraternity house neither owned nor operated by the university might be exempt from ADA coverage as a private club.  The letter listed the following eleven characteristics of private clubs:

1) whether the club is highly selective in choosing members;

2) whether the club membership exercises a high degree of control over the establishment’s operations

3) whether the organization has historically been intended to be a private club;

4) the degree to which the establishment is opened up to non-members;

5) the purpose of the club’s existence;

6) the breadth of the club’s advertising for members;

7) whether the club is non-profit;

8) the degree to which the club observes formalities;

9) whether substantial membership fees are charged;

10) the degree to which the club receives public funding; and

11) whether the club was created or is being used to avoid compliance with a civil rights act.

A federal district court reduced the elements of a private club to three: (1) the club is a club in the ordinary sense of the word, (2) the club is private as opposed to public, and (3) the club requires some meaningful conditions of limited membership.²  Fraternities and sororities likely fall under the private club exception, although whether an entity is a public accommodation (or a private club) is a question of law that precedent does not appear to have squarely addressed.³

Title III may still apply to areas of a “private club” that are opened up to the general public for a purpose that falls within one of the categories of places of public accommodation (categories of places of public accommodation, again, include establishments serving food or drink, places of exhibition or entertainment, places of recreation, etc.).⁴  But “occasional use of an exempt commercial or private facility by the general public is not sufficient to convert that facility into a public accommodation under the ADA.”⁵  Private clubs remain private clubs despite occasional use by the general public; a private club offering guests limited—not unfettered—access to the facilities does not become a public accommodation even if guests, in isolated instances, go beyond the areas to which they were invited.⁶

Finally, if an area is deemed a public accommodation, its owner, lessee, or operator must make the location accessible, unless it can be shown to be an undue burden.⁷  Courts assessing whether a burden is an undue burden, consider the following: “(1) the nature and cost of the action; (2) the financial resources of the site involved, the number of persons employed at the site, the effect on expenses and resources, legitimate safety requirements that are necessary for safe operation, or the impact otherwise of the action upon the operation of the site; (3) the geographic separateness, and the administrative and financial relationship of the site to the corporation; (4) if applicable, the overall financial resources of the parent corporation and the number of facilities; and (5) if applicable, the type of operation of the parent corporation.”⁸  If a court finds that the ADA would impose an undue burden, then the ADA requirement is lifted.

In sum, sororities and fraternities likely fall under the “private club” exemption to the ADA’s application to places of public accommodation.  Further, even if a chapter occasionally opens its doors to non-members, this would not negate its status as a private club.  Even if a chapter were found to have a public accommodation aspect to its house—for example if there was an area to which all members of the public were allowed access—the ADA would probably not apply because to do so would pose an undue burden.

One caveat applies to this analysis: if the university owns or operates the house, the ADA applies.  In the letter to Senator Lott, the Justice Department stated, “if the university owns or intends to own or operate the house in the future, the university is obligated to ensure that the construction of the house meets ADA new construction standards.  University-owned fraternity houses, like all other aspects of a university experience, are part of the place of education, and are covered by title III.”

1 42 U.S.C.§ 12182(a).

2 Kelsey v. University Club of Orlando (M.D. Fla. 1994), 845 F. Supp. 1526, 1529.

3 Jankey v. Twentieth Century Fox Film Corp. (C.D. Cal. 1998), 14 F. Supp.2d 1174, 1178.

4 Rasmussen v. Cent. Fla. Council Boy Scouts of America, Inc. (M.D. Fla. 2008), No: 6-07-cv-1091, 2008 U.S. Dist. LEXIS 17936.

5 Jankey, 14 F. Supp.2d at 1178.

6 Id.

7 42 U.S.C. § 12182(b)(2)(A)(iii).

8 Roberts v. KinderCare Learning Ctrs. (8th Cir. 1996), 86 F.3d 844, 846.