The Americans with Disabilities Act (ADA) is one of America's most comprehensive pieces of civil rights legislation that prohibits discrimination and guarantees that people with disabilities have the same opportunities as everyone else to participate in the mainstream of American life—to enjoy employment opportunities, to purchase goods and services, and to participate in state and local government programs and services.

To be protected by the ADA, one must have a disability, which is defined by the ADA as 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 by others as having such an impairment.

The ADA does not specifically name all of the impairments that are covered. The ADA is located in the United States Code, beginning at 42 U.S.C. §12101.

Governmental Units that Must Comply With the ADA

Units of government at the state, county, and local levels are subject to the ADA and must comply with the ADA standards in new construction and alterations. All types of public facilities are covered, including schools, hospitals, public housing, courthouses, and prisons. Federal facilities are not covered by the ADA, but by an earlier law, the Architectural Barriers Act (ABA) and must meet separate, though very similar, standards.

Private Sector Places of Public Accommodation and Commercial Facilities

In the private sector, the ADA standards apply to places of public accommodation and commercial facilities. Places of public accommodation are facilities that affect commerce and that fall within twelve categories listed in the ADA statute—including stores, shops, restaurants, bars, sales or rental establishments, service establishments, theaters, places of lodging, recreation facilities, assembly areas, private museums, places of education, and others.

Nearly all types of private businesses that serve the public are included in the twelve categories, regardless of size. Commercial facilities include office buildings, factories, warehouses, manufacturing plants, and other facilities whose operations affect commerce.

Is ADA Compliance the Landlord’s Responsibility or the Tenant’s?

Most commercial leases include a provision that allocates the risk of liability and the cost of compliance with applicable laws to the tenant—but landlords and tenants may allocate responsibility for complying with the ADA’s requirements and liability for violations as they choose.

Any allocation of the risk of ADA liability and the cost of ADA compliance is effective only between the landlord and tenant and has no effect on the rights of persons filing lawsuits under the ADA for violations of the statute.

But the allocation of the risk of ADA liability and the cost of ADA compliance in the lease agreement is important because it may allow either the landlord or the tenant to pursue an indemnification claim against the other party to the lease agreement who assumed these responsibilities.

In New Hampshire, as in all states, the Americans with Disabilities Act (ADA) mandates that individuals with disabilities must be afforded the same opportunities as others in areas such as employment, goods and services acquisition, and participation in state and local government programs. The ADA's protection extends to those with a disability defined as a significant physical or mental impairment, those with a history of such an impairment, or those perceived to have such an impairment. The ADA applies to various governmental units including state, county, and local entities, which must adhere to ADA standards in new constructions and alterations. This includes public facilities like schools and courthouses, but not federal facilities, which are governed by the Architectural Barriers Act (ABA). In the private sector, ADA standards apply to places of public accommodation and commercial facilities, encompassing nearly all types of businesses that serve the public. When it comes to ADA compliance, both landlords and tenants in commercial leases can negotiate who bears the responsibility and cost of compliance. However, such agreements do not affect the rights of individuals who may file lawsuits under the ADA for violations. The allocation of ADA liability and compliance costs in lease agreements is significant as it may influence indemnification claims between the landlord and tenant, depending on who assumed these responsibilities.