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The Obligations of Religious Organizations Under the ADA

Question:

I would like to know if religious buildings are exempt under the State of Illinois disabilities act. I know that they are under the federal ADA, but I am unsure about the State of Illinois.

Answer:

Thank you very much for your question. It raises several interesting issues. In order to fully address your question, I will discuss the obligations of religious organizations under the ADA (Americans with Disabilities Act), the Illinois Human Rights Act, and other relevant laws.

In general, while religious organizations have some exemptions under the Illinois Human Rights Act, there are situations where the facilities of a religious organization will be covered by the law. In addition, newly constructed facilities or facilities that are renovated are required to be accessible under the Illinois Environmental Barriers Act and the Illinois Administrative Code.

Your statement that religious buildings are exempt under the federal ADA is often repeated but is only partially accurate. "Religious organizations" are exempt as a public accommodation under Title III of the ADA. Religious organizations are NOT exempt as employers under Title I of the ADA. In order to fully explain this distinction, let me provide some background information about the Rehabilitation Act and the ADA.

Religious Organizations That Receive Federal Funds Are Covered Under The Rehabilitation Act of 1973

Prior to passage of the ADA, the main law that prohibited disability-based discrimination is the Rehabilitation Act of 1973 (Rehab Act). Under Section 504 of the Rehab Act, which is still in effect, any facility that receives federal funding is prohibited from discriminating on the basis of disability. There is no exemption for Religious organizations under Section 504. Therefore, if a religious entity that receives Federal funds is physically inaccessible to people with disabilities, it may be guilty of discrimination under Section 504 of the Rehab Act. 29 U.S.C. Sec. 794. Section 504 of The Rehab Act provides:

No otherwise qualified individual with a disability in the United States, … shall, solely by reason of his or her disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service...

Small providers are not required...to make significant structural alterations to their existing facilities for the purpose of assuring program accessibility, if alternative means of providing the services is available.

The ADA

The ADA expands the coverage of The Rehab Act. The ADA is the 1990 Civil Rights Law designed to protect the civil rights of people with disabilities in the United States of America. The ADA seeks to ensure that people with disabilities are fully integrated into the fabric of society and enjoy the same opportunities as people without disabilities. The ADA prohibits discrimination through inaccessibility or other means, requires that businesses provide reasonable accommodations to employees with disabilities, and provides that facilities and services be made accessible. The ADA is divided into five parts called Titles. These Titles are:

  • Title I: Employment
  • Title II: State and Local Governments and Public Transportation
  • Title III: Public Accommodations and Commercial Facilities
  • Title IV: Telecommunications
  • Title V: Miscellaneous

42 U.S.C. § 12101 et seq.

We will examine religious organizations under Title III of the ADA, which covers place of public accommodation, and Title I of the ADA, which concerns employment issues.

Religious Organizations Are Exempt Under Title III of the ADA

As you noted in your question, religious Organization are exempt from coverage under Title III of the ADA as public accommodations (as are private clubs). The religious organization exemption is the result of the efforts of Senator Orrin Hatch. Section 307 of the ADA provides that "[t]he provisions of this subchapter shall not apply to private clubs… or to religious organizations or entities controlled by religious organizations, including places of worship." 42 U.S.C. § 12187.

As noted in the preamble to the ADA title III regulation:

[T]he ADA's exemption of religious organizations and religious entities controlled by religious organizations is very broad, encompassing a wide variety of situations. Religious organizations and entities controlled by religious organizations have no obligations under the ADA. Even when a religious organization carries out activities that would otherwise make it a public accommodation, the religious organization is exempt from ADA coverage. Thus, if a church itself operates...a private school, or a diocesan school system, the operations of the...school or schools would not be subject to the ADA or [the title III regulations]. The religious entity would not lose its exemption merely because the services provided were open to the general public. The test is whether the church or other religious organization operates the public accommodation, not which individuals receive the public accommodation's services.

56 Fed. Reg. 35,554 (July 26, 1991).

Non-Religious Entities that Lease Space from Religious Organizations Are NOT Exempt Under Title III of the ADA

This exemption for the facilities of religious organizations does not extend to non-religious entities that rent facilities owned by religious organizations. Non-religious entities may be subject to Title III of the ADA when operating places of public accommodation in inaccessible facilities that are rented from a religious organization. Only the non-religious entity has ADA liability in this situation, the religious organization does not. This liability only exists when the non-religious entity pays rent to the religious organization for the facility. There is no liability if the religious organization does not collect rent but rather donates the facility to the non-religious organization. See 56 Fed. Reg. 35,554 (July 26, 1991); Department of Justice ADA Title III Technical Assistance Manual SIII-1.5200 (1992).

For example, a community theatre presenting a play in a church auditorium is exempt only when the church donates the space. However, the non-religious public accommodation is covered by the ADA when the space is rented for money or any other consideration from the church. If the facilities are rented, the community theatre is covered by the ADA but the church is not.

Religious Organizations Are NOT Exempt Under Title I of the ADA

In addition, it is important to note that religious organizations are covered as employers under Title I of the ADA. Title I covers all employers with 15 or more employees. Under Title I, a religious organization may need to make modifications to a religious building to accommodate an employee with a disability even though they do not have to modify the building to accommodate other members of the public. Making facilities accessible for employees with a disability is considered a "reasonable accommodation" under Title I of the ADA. (As noted below, The Illinois Human Rights Act covers all employers with one or more employees including religious organizations).

Religious Organizations Under Illinois Law

You may have noticed that, so far, I have not answered your question which concerned coverage of religious entities under the Illinois law. There is no "Illinois Disabilities Act," but there are several other state laws that apply to people with disabilities such as:

  • The Illinois Human Rights Act
  • The Illinois Environmental Barriers Act
  • The Illinois Accessibility Code

The Illinois Human Rights Act

The Illinois Human Rights Act (HRA) is the state's major anti-discrimination statute. The Human Rights Act protects people with "handicaps" (sic). Like the ADA, the public accommodations provision of HRA exempts private clubs and religious organizations from coverage as places of public accommodation.

The public accommodation exemption for religious organizations is contained in Section 5 103 of the law which provides:

Nothing in this Article shall apply to:

(A) Private Club. A private club, or other establishment not in fact open to the public, except to the extent that the goods, services, facilities, privileges, advantages, or accommodations of the establishment are made available to the customers or patrons of another establishment that is a place of public accommodation.

There is a difference between the two laws in the situation where a religious organization rents facilities to a non-religious organization. As mentioned above, under the ADA, only the non-religious organization is liable. Under the HRA however, both the non-religious and the religious organization are subject to the law.

In the employment setting, religious organizations are covered as employers under both the ADA and HRA. An important difference is the fact that the HRA covers employers of any size, whereas the ADA only covers employers with 15 or more employees. The Illinois Human Rights Act can be found in the Illinois Revised Statutes at 775 ILCS 5/5-101 et seq.

The Illinois Environmental Barriers Act and the Illinois Administrative Code

The above analysis concerned existing facilities. However newly constructed facilities or those that are altered are covered under Illinois law even if owned or used by religious organizations. The Illinois Environmental Barriers Act (EBA) is a state law requiring that certain newly constructed or altered public facilities must comply with certain accessibility standards. These standards are known as the Illinois Accessibility Code (IAC). These standards also apply to newly constructed multi-story housing structures. The Illinois Environmental Barriers Act and the Illinois Accessibility Code do not exempt religious organizations under the public accommodations or employer provisions. The EBA is found at 410 ILCS 25. The IAC is located at 71 Ill. Adm. Code 400.

Environmental Barriers Act

The Environmental Barriers Act provides accessibility requirements for new construction and certain alterations. The EBA requires that:

Illinois Environmental Barriers Act (410 ILCS 25/5)

(a) The standards adopted by the Capital Development Board shall apply to:
1) Public Facilities; New Construction. Any new public facility or portion thereof, the construction of which is begun after the effective date of this Act.

(b) Alterations. Any alteration to a public facility shall provide accessibility as follows:

1) Alterations Generally. No alteration shall be undertaken that decreases or has the effect of decreasing accessibility or usability of a building or facility below the requirements for new construction at the time of alteration.

The EBA also requires a Statement of Compliance by the architect/engineer unless the cost of construction or alteration is less than $50,000. The Statement must certify that the plans and specifications for the building are in compliance with the EBA. The Statement is filed with the County Clerk or with the governmental unit contracting for the work.

The Illinois Accessibility Code

The Illinois Accessibility Code is a set of standards adopted by the Capital Development Board to implement the Environmental Barriers Act. The IAC includes design requirements for buildings as well as all spaces and elements within the buildings. The IAC seeks to ensure that buildings covered by the EBA are designed, constructed, and/or altered so that they are readily accessible to, and usable by, individuals with disabilities. The IAC has the force of a building code for the State of Illinois and applies to new construction, alterations, additions, historic preservation, restoration, or reconstruction of any building covered by the EBA.

Section 400.130 of the IAC states:

a) Buildings and facilities covered: This Code applies to all "public facilities" and "multi-story housing units" as defined and governed by the EBA and located, in whole or in part, within the legal geographic boundaries of the State of Illinois, unless specifically exempted herein.

Section 400.210 of the IAC defines public facilities as:

"Public Facility": … [A]ny building, structure, or site improvement used or held out for use or intended for use by the public or by employees for one or more of, but not limited to, the following: the purpose of gathering, recreation, education, employment...

Conclusion

In conclusion, the ADA exempts religious organizations from the public accommodations provisions of the law, but not the employment provisions. However, non-religious organizations that rent facilities from religious organizations are covered by the ADA and required to be "readily accessible."

The requirements are the same under Illinois law with one very important exception. Religious organization are required to provide accessibility as public accommodations when facilities are being newly constructed or undergoing a renovation.

Not included in this analysis are other local laws that may apply such as The Chicago Human Rights Ordinance and The Cook County Human Rights Ordinance. Also, does not cover discrimination not related to the facility.

This analysis did not determine whether religious organizations have to answer to an authority higher than the law. However, religious organizations often serve a population that is aging and may benefit from accessibility enhancements. Accessibility enhancements make facilities more inviting to everyone, parents with strollers may use wheelchair ramps more often than people using wheelchairs. Even more importantly, it should be remembered that all people are created "In the image of God," and therefore should be treated with proper respect and dignity.

Sincerely,

Alan M. Goldstein
The Illinois ADA Project at Equip for Equality