In order to justify providing separate programs or activities to all customers with disabilities, to particular classes or groups of customers with disabilities, or to individual customers with disabilities, a covered entity has the burden of demonstrating that

• The segregation is necessary (see definition below) in order to provide those customers with disabilities with programs or activities that are as effective as those provided to customers without disabilities;
• The separate program or activity is in fact as effective as the programs or activities provided to customers without disabilities;
• An individualized assessment is performed before referring a particular customer with a disability to the segregated program or activity; and
• The ultimate decision whether to participate in the segregated program or activity is left up to the customer. If the customer is qualified for, and wishes to participate in, the "regular," non-segregated programs or activities, he or she is permitted to do so.

Necessary. Serving customers with disabilities in segregated settings is not "necessary" simply because the facility where the aid, benefits, services or training is provided is inaccessible. The Department of Labor's regulations implementing Section 504 of the Rehabilitation Act of 1973, as amended, provide that lack of compliance with accessibility requirements is not a lawful justification for discrimination against persons with disabilities. Therefore, by definition, a lack of accessibility cannot make segregated services "necessary." The fact that serving customers with disabilities in an integrated setting may be expensive or inconvenient also does not make segregated services "necessary."

See Section 188 of the Workforce Investment Act of 1998 - 29 CFR 37.7.