PUBLIC ACCOMMODATIONS
§ 44.21. Generally.
If a handicapped or disabled person, with reasonable accommodation, meets the essential eligibility requirements for and is similarly situated with able-bodied persons in terms of need and desire to use, enjoy or benefit from a public accommodation, then reasonable accommodations shall be made to assure the person opportunity substantially equivalent to that of able-bodied persons to use, enjoy and benefit from the public accommodation in an integrated setting; provided that nothing in this section may be construed to impose an undue hardship upon an owner, operator or provider of a public accommodation, and provided further that nothing in this section may be construed so as to impose a demonstrable and serious threat of harm to the handicapped or disabled person or a demonstrable threat of harm to the health and safety of others.
Comment This section requires that public accommodations made available to handicapped or disabled persons be substantially equivalent to, meaning equally effective as those available to able-bodied persons. Merely offering identical public accommodations without taking account of an individual’s handicap or disability may have the effect of excluding that individual from use, enjoyment, or benefit of the public accommodation.
It should specifically be noted that section 4(e) of the act defines public accommodation to include educational institutions. Accordingly, the Commission construes § 44.21 to require that public school districts which provide free education for able-bodied children must provide a substantially equivalent service for handicapped and disabled children; i.e. an education suitable to their individual needs. Compliance with the Department of Education’s regulation concerning Special Education—Program Responsibility, 22 Pa. Code Chapter 13 (Reserved), will be deemed sufficient to satisfy obligations created by this chapter.
Similar to § 44.4, which make health and safety factors relevant to determining the job relatedness of a handicap or disability, the Commission has met the concerns of some commentators by adding a new proviso to the effect that reasonable accommodation is not required where it will impose a demonstrable and serious threat of harm to the handicapped or disabled person seeking such accommodation or where it will impose any demonstrable threat of harm to the health and safety of others. The distinction, of course, is not due to any lack of regard for the health and safety of handicapped or disabled persons but rather to permit such persons the same degree of freedom of choice available to able-bodied persons.
Notes of Decisions Applicability
Section 44.21 applies only to employment and public accommodations, not to private housing. Doral II Condominium Association v. Human Relations Commission, 779 A.2d 605 (Pa. Cmwlth. 2001); appeal granted in part 801 A.2d 1207 (Pa. 2002); and order affirmed at 810 A.2d 634 (Pa. 2002).
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