US Department of Education NIDRR Technical Assistance Program

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Chapter 3: General Requirements

Italicized text was added to the original Title III Technical Assistance Manual through supplements issued in 1993 and 1994.

Regulatory references: 28 CFR 36.201-36.213.

III-3.8000 Direct threat.

A public accommodation may exclude an individual with a disability from participation in an activity, if that individual's participation would result in a direct threat to the health or safety of others. The public accommodation must determine that there is a significant risk to others that cannot be eliminated or reduced to an acceptable level by reasonable modifications to the public accommodation's policies, practices, or procedures or by the provision of appropriate auxiliary aids or services. The determination that a person poses a direct threat to the health or safety of others may not be based on generalizations or stereotypes about the effects of a particular disability; it must be based on an individual assessment that considers the particular activity and the actual abilities and disabilities of the individual.

The individual assessment must be based on reasonable judgment that relies on current medical evidence, or on the best available objective evidence, to determine --

  1. The nature, duration, and severity of the risk;
  2. The probability that the potential injury will actually occur; and
  3. Whether reasonable modifications of policies, practices, or procedures will mitigate or eliminate the risk.

Such an inquiry is essential to protect individuals with disabilities from discrimination based on prejudice, stereotypes, or unfounded fear, while giving appropriate weight to legitimate concerns, such as the need to avoid exposing others to significant health and safety risks. Making this assessment will not usually require the services of a physician. Sources for medical knowledge include public health authorities, such as the U.S. Public Health Service, the Centers for Disease Control, and the National Institutes of Health, including the National Institute of Mental Health.

ILLUSTRATION: Refusal to admit an individual to a restaurant because he or she is infected with HIV would be a violation, because the HIV virus cannot be transmitted through casual contact, such as that among restaurant patrons.

ILLUSTRATION 2: Denial of health club membership to an individual who is infected with HIV would be a violation, because current medical evidence indicates that the HIV virus cannot be contracted through casual contact, perspiration, or urine in an exercise room, sauna room, or pool.

ILLUSTRATION 3: Refusal to provide dental services to an individual who is infected with HIV because of the patient’s HIV-positive status would be a violation. Current medical evidence indicates that the risk of HIV transmission from a patient to other patients and/or the dental staff is infinitesimal, and can be even further reduced by the use of universal precautions (infection control procedures that prevent the transmission of all infectious diseases, including HIV).