Hastings Law Journal


This Article discusses a number of federal court opinions which have dealt with the "fundamental alteration" query, posed by Titles II and III of the Americans with Disabilities Act, in the five years after the Supreme Court decision in PGA Tour, Inc. v. Martin. The author identifies problems inherent in the approach taken in Martin and discusses the Court's lack of clear guidance on the issue. She then sets forth a proposed framework and suggested considerations for courts undertaking the fundamental alteration query. The Article declares that only after establishing such a framework may a court distinguish between compelling a defendant to afford access to a disabled plaintiff and asking a defendant to act outside its normal purview, which would amount to a fundamental alteration.

Using Antitrust Law as a model, the author posits a framework for this query in which the level of deference a court gives a defendant to define itself, and determine when its usual offerings will be impermissibly exceeded, defines the scope of the analysis. She then sets forth some unifying considerations for courts to examine in this analysis.

The Article concludes with a declaration that courts' analyses should evince a transparency that will allow for a more cogent dialogue among courts as to what the fundamental alteration query will and will not require.

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