American Disability Acts (ADA)

The ADA is a "thinking" person's law To understand how the ADA does and/or does not apply to a specific situation, you must know the general requirements for each of the 5 titles of the ADA. You should also know the circumstances under which the general requirements do or do not apply. And, you must also know the limitations of each title. These limitations are known as the "defenses" or the UNLESS clause. Source: ADA Title III Technical Assistance Manual [Ref. 16 • "Places of public accommodation must make reasonable modifications in policies, practices, and procedures when such modifications are necessary to afford goods and services to a person with a disability, UNLESS the public accommodation can demonstrate that modifying the policy or practice would fundamentally alter the nature of the goods and services offered." With little exception, the general nondiscrimination requirements of the ADA are the same regardless of title. • These general nondiscrimination requirements are known as "cross-cutting" issues because they apply or cut across all of the titles of the ADA. Some of these issues may differ slightly depending on which title applies The ADA is a civil rights law. • Civil rights laws are different from other types of laws and regulations. Civil rights laws tend to be fact-specific, determined on a case-by-case basis, and are often more subjective than objective. Each part of the ADA must be applied on an individualized, fact-specific, case-by-case basis. For example, providing print information in Braille may be effective for one person who is blind; however, not all people who are blind read Braille. For another person who is blind, an audio Continued • Unlike federal legislation governing such things as "Clean Air" where standards are highly specific and measurable (for example, auto emissions under a certain number pass inspection whereas those over that number fail), there is no way to objectively measure the ADA except in the context of a specific individual in a particular situation. Terms such as "reasonable modification" and "undue burden" mean nothing until they are used in the context of a specific person in a • The Americans with Disabilities Act (ADA) of 1990 is a civil rights law for persons with disabilities. When it was introduced in Congress, it was strongly supported by both parties. It passed both Houses of Congress overwhelmingly: Senate, 91-6 and House, 377-28. Former President George Bush signed the ADA into law on July 26, 1990. • "And now I sign legislation, which takes a sledgehammer to another wall, one which has, for too many generations, separated Americans with disabilities from the freedom they could glimpse, but not grasp. Once again, we rejoice as this barrier falls, proclaiming together we will not accept, we will not excuse, we will not tolerate discrimination in America...Let the shameful wall of exclusion finally come tumbling down." • Source: Remarks of President George Bush at the signing of the ADA, July 1990 [Ref. 24] The ADA calls for nondiscrimination against Americans with disabilities in these five areas: • • • • • employment, state and local government, public accommodations, telecommunications, and transportation. Statistics and the ADA • When the ADA was passed in 1990, there were 43 million people with disabilities in the United States. There are now approximately 54 million Americans with disabilities and this number will continue to grow. Over the years since the ADA was passed, great progress has been made by persons with disabilities. However, there are still large gaps separating people with disabilities from the American mainstream. A recent White House report noted that: Americans with disabilities have a lower level of educational attainment than those without disabilities: • One out of five adults with disabilities has not graduated from high school, compared to less than one of ten adults without disabilities. - National graduation rates for students who receive special education and related services have stagnated at 27 percent for the past three years, while rates are 75 percent for students who do not rely on special education Americans with disabilities are poorer and more likely to be unemployed than those without disabilities: • In 1997, over 33 percent of adults with disabilities lived in a household with an annual income of less than $15,000, compared to only 12 percent of those without disabilities. • Unemployment rates for working-age adults with disabilities have hovered at the 70 percent level for at least the past 12 years, while rates are significantly lower for working-age adults without disabilities. • 71 percent of people without disabilities own homes, but fewer than 10 percent of those with disabilities do. Too many Americans with disabilities remain outside the economic and social mainstream of American life: • Computer usage and Internet access for people with disabilities is half that of people without disabilities. • People with disabilities vote at a rate that is 20 percent below voters without disabilities. In local areas, disability issues seldom surface in election campaigns, and inaccessible polling places often discourage citizens with disabilities from voting. • Source:The White House News - Freedom Initiative Executive Summary [Ref. 27] Civil Rights and the ADA • The Americans with Disabilities Act (ADA) is the most comprehensive policy statement ever made in American law about how the nation should address individuals with disabilities. Continued • All too often, policy decisions regarding people with disabilities have been premised on feelings of compassion and pity. The ADA is based on civil rights and not on emotions. • Civil rights, by their very nature, focus on the needs and rights of individuals; they are built on the belief that all individuals, regardless of their circumstances, are entitled to equal treatment in American society. As a civil rights law, the ADA is similar to other civil rights acts that protect individuals on the basis of race, religion, age, national origin, and sex. Civil rights laws: • Fight discrimination by outlawing segregation and isolation based on misconceptions and biases relative to certain individuals; • Provide processes for individuals to file lawsuits to recoup damages from discrimination; and • Establish government agencies to handle and investigate discrimination complaints • Counter Myths and Stereotypes The ADA was designed to counter myths and stereotypes about people with disabilities and replace traditional notions about disability. The emphasis is on empowerment and individual rights. As a piece of civil rights legislation, the ADA addresses three objectives: The ADA encourages: • Covered entities to focus on the abilities of people with disabilities. • Encourages employers to look at people with disabilities as valuable parts of the workforce, instead of seeing them as unemployable and needing government assistance. • State and local government leaders to see people with disabilities as contributing members of a community, rather than as social burdens. • Places of public accommodation such as stores, theaters, dry cleaners, etc., to see people with disabilities as potential customers, rather than as objects of pity. Continued The ADA encourages: • The ADA even covers people without disabilities who are unfairly "regarded as" having a disability. Congress acknowledged that although an individual may have an impairment that does not in fact substantially limit a major life activity, the reaction of others may prove just as disabling. Remove Segregation and Isolation • The ADA was designed to remove the barriers that segregated and isolated people with disabilities by: • Providing telecommunications relay services (TRS) to help people with hearing and speech impairments communicate better with others. • Removing architectural barriers by installing ramps, elevators and accessible parking spaces to make buildings more welcoming and accessible to all visitors. • Requiring reasonable accommodation in business settings to help ensure that people with disabilities can compete in the workplace. Continued • The ADA also specifically requires that programs and services for people with disabilities be offered in the "most integrated setting possible". This "integration requirement", upheld by a 1999 Supreme Court decision in the case of Olmstead v. L.C. [Ref. 38] , has caused many states to begin to move people with disabilities from segregated institutional Provide Accommodations • Most civil rights laws prohibit discrimination and provide mechanisms for enforcement. The ADA goes one step further by requiring covered entities to provide the accommodations, within reason, that people with disabilities need in order to have equal opportunity to participate and benefit from goods and services offered to the general public. Continued Provide Accommodations • • • Covered entities include private employers with 15 employees or more, public employers, state and local governments, and places of public accommodations. This requirement is broad and varied, and takes into account the administrative and financial resources of the covered entity. Employers must provide "reasonable accommodations" for employees with disabilities, ranging from altering a work schedule to purchasing assistive technology products to job reassignment or restructuring. Other covered entities must make reasonable changes to policies and programs to accommodate persons with disabilities, as well as provide auxiliary aids and services, such as sign language interpreters, to ensure effective communication with people with disabilities. of equal opportunity, full participation, independent living and economic self-sufficiency; • It reflects the disability community's determination to participate like all American citizens and to direct their own futures. The National Council on Disability (NCD) 10th anniversary report on ADA enforcement summarized the impact of the ADA this way Continued • In the decade after its enactment, the Americans with Disabilities Act (ADA) has ... brought the principle of disability civil rights into the mainstream of public policy. The law...has fundamentally affected the way Americans perceive disability...It has permanently changed the architectural and telecommunications landscape of the United States. It has created increased recognition and understanding of the manner in which the physical and social environment can pose discriminatory barriers to people with disabilities. It is a vehicle through which people with disabilities have made their political influence felt, and it continues to be a unifying focus for the disability rights movement." • Source: Promises to Keep - A Decade of Federal Enforcement of the ADA [Ref. 23] Conclusion • However, as the statistics indicate, there is still more to do before Americans with disabilities enjoy the same civil rights as all Americans. Moreover, ADA compliance is an ongoing responsibility. The ADA did not set forth one-time standards for compliance, but created a framework for continual compliance by covered entities. The ADA is a "work in Continued • New buildings still need to be designed to meet access specifications. • Employees with disabilities still need workplace accommodations. • State and local governments still need to provide access to their programs and services. Continued Remember, civil rights laws are unique. Effective compliance depends on the context of a specific individual in a particular situation. Each part of the ADA must be applied on an individualized, fact-specific, case-by-case basis. History of the ADA Although the ADA is the most comprehensive, it is not the only civil rights act that protects the rights of people with disabilities. Other civil rights laws enacted between 1964 and 1986, as well as one passed in 1998, provide limited protection for people with disabilities. These six laws are described briefly below. The Civil Rights Act, a forerunner to the ADA, was passed in 1964. It outlaws discrimination based on race in federally funded programs and in public accommodations and employment. While this law did not specifically apply to persons with disabilities, it served as a framework for future legislation. Continued The Architectural Barriers Act of 1968 was the first federal law addressing civil rights for people with disabilities. It requires buildings constructed by the federal government or with federal funding be accessible to people with disabilities. The law resulted in the first set of standards for the removal of architectural barriers: The Uniform Federal Accessibility Standards (UFAS). Continued The Rehabilitation Act of 1973 was the first federal law to prohibit discrimination against people with disabilities. It requires that federally funded programs be accessible to people with disabilities and that federal employers provide reasonable accommodations for their employees with disabilities. Much of the terminology in the Rehabilitation Act was later used in the ADA. Continued In 1975, legislation was passed establishing the rights of students with disabilities to a free, appropriate public education in the most integrated setting possible. Now known as the Individuals with Disabilities Education Act (IDEA), it sets forth a process where parents and schools work together to design individualized education plans (IEPs) for students with disabilities. Continued In 1986, the Air Carrier Access Act (ACAA) was passed to ensure access to air travel by people with disabilities. The ACAA was passed in response to a Supreme Court decision that found that the Rehabilitation Act did not apply to air travel. Continued As you recall, the ADA was passed in 1990. Eight years later in 1998, an amendment to Section 508 of the Rehabilitation Act required increased access to electronic and information technology for people with disabilities. This law provided for changes in federal purchasing of information technology and increased access to federal Internet sites. Source: Chronology of Disability Rights Movements [Ref. 22] Status Today of the ADA • Since the passage of the ADA in 1990, all the major provisions of the law have taken effect. Significant public and private sector efforts have increased public awareness of the ADA and educated major entities covered by the ADA. Implementation of the ADA has resulted in people with disabilities gaining access to a wider variety of services, programs and activities across America. The ADA Snapshot of America, a poll of 1,330 individuals from 48 states conducted by United Cerebral Palsy Association (UCPA) in 1996, found that the ADA has indeed made a difference in the lives of Americans with disabilities. In its 1995 report to Congress, the National Council on Disability (NCD) noted that because of the ADA: • • • • • • • • People with disabilities are proud to be equal American citizens. Children and youth with disabilities are encouraged to go to school, to participate in and learn from their communities, and to prepare for jobs. Adults with disabilities are finding a reduction in employment barriers and more freedom to travel in their communities, and they are becoming customers of accessible businesses. Families are encouraged to stay together and to participate fully in the lives of their communities. Businesses are changing their policies, their facilities, and their attitudes. Villages, cities, counties, and states are looking at people with disabilities as real citizens. Public awareness of the needs, contributions, and rights of people with disabilities has improved significantly. Source: Voices of Freedom - America Speaks Out on the ADA [Ref. 26] People with disabilities are still far from the America promised by the ADA, but the discrimination, misinformation, stereotypes, and environmental barriers that have accumulated over thousands of years of human history are beginning to crumble. The single greatest barrier to the successful implementation of the ADA continues to be the myths that have been created regarding its requirements, its costs, and its intended effects. All across America, citizens testified that when these myths were dispelled, compliance was relatively easy and the results were beneficial "The first perception was that the ADA was overwhelming then people became more comfortable because the reality was that the changes required would not have to be so much." -- Source: Illinois, 1996 ADA Snapshot of America Title I - Employment • Private employers, state and local governments, employment agencies, labor unions, and joint labormanagement committees must comply with Title I. • All employers with 25 or more employees, including state and local government employers, had to comply with Title I after July 26, 1992. • All employers, including state and local government employers, with 15 or more employees (including part-time employees) had Title II – State and Local Government • Title II covers the programs and services operated by state and local governments; these are also known as public entities. Title II became effective on January 26, 1992 Title II is divided into two subtitles. • Subtitle A is intended to protect qualified individuals with disabilities from discrimination on the basis of disability in the services, programs, or activities of all state and local governments. It additionally extends the prohibition of discrimination on the basis of disability established by Section 504 of the Rehabilitation Act of 1973, as amended, to all activities of state and local governments, including those that do not receive Federal financial assistance. By law, the Department of Justice's ADA Title II regulation adopts the general prohibitions of discrimination established under Section 504, and incorporates specific prohibitions of discrimination from the ADA. Continued Title II is divided into two subtitles • Subtitle B is intended to clarify the requirements of Section 504 for public transportation entities that receive Federal financial assistance. It also extends coverage to all public entities that provide public transportation, whether or not they receive Federal financial assistance. It establishes detailed and complex standards for the operation of public transit systems, including commuter and intercity rail (AMTRAK). The Department of Transportation is responsible for the implementation of the second subtitle of Title II and issued regulations implementing that subtitle. Title III – Public Accommodations • Title III covers public accommodations, commercial facilities, examinations and courses related to licensing or certification, and transportation provided to the public by private entities. Title III became effective on January 26, 1992. Continued Title III – Public Accommodations • Public accommodations are private entities that own, operate, or lease to places of public accommodation. Places of public accommodation include, but are not limited to, restaurants, hotels, theaters, convention centers, retail stores, shopping centers, dry cleaners, Laundromats, pharmacies, doctors' offices, hospitals, museums, libraries, parks, zoos, amusement parks, private schools, day care centers, health spas, and bowling alleys. Title IV - Telecommunications • Title IV addresses telephone and television access for people with hearing and speech disabilities. Title IV is enforced by the Federal Communications Commission. Specifically required under Title IV are: • Closed captioning of Federally funded public service announcements • Telephone companies must establish instate and state-to-state telecommunications relay services (TRS) 24 hours a day, 7 days a week by July 26, 1993. Title V – Miscellaneous Provisions • Title V contains miscellaneous provisions. Most apply to all titles of the ADA and include these: • Prohibition against retaliation and coercion. • Construction - (However, nothing in the ADA is to be construed to apply a lesser standard than the standards applied under Title V of the Rehabilitation Act of 1973, including the Section 504 regulations.) Continued Title V – Miscellaneous Provisions • Does not preclude or require restrictions on smoking. • Does not change the status of insurance underwriting. This means that pre-existing conditions clauses that are allowed under state laws are legal under the ADA. However, an insurance plan may not refuse to insure or limit coverage or charge a higher amount to a person with a disability solely because of the disability UNLESS the refusal, limitation or difference in cost is based on sound actuarial principles. Continued Title V – Miscellaneous Provisions • Requires several federal agencies to develop technical assistance plans to assist covered entities to understand their ADA responsibilities. • Encourages the use of alternative dispute resolution (ADA). • Requires a report about the effect that wilderness management has on the ability of individuals with disabilities to use and enjoy federal wilderness areas. • Covers Congress and Agencies of the Legislative Branch. Sections of Title V that do not cross to all titles of the ADA include these: U.S. Department of Justice (DOJ) • • The Department of Justice (DOJ) has the authority to enforce all the provisions of the ADA, but focuses primarily on Title II and Title III. The DOJ refers employment complaints to the EEOC unless the employer is a state or local government agency directly funded by DOJ. The DOJ sometimes enforces Title I employment complaints against a state or local government entity, even if that entity has fewer than fifteen employees. Alternately, the EEOC refers some employment-related complaints to the DOJ when the employer is a state or local government entity covered by Title II, and the EEOC has been unable to reach a conclusion to the case. The DOJ issues regulations implementing Title II and Title III of the ADA. It also reviews state building codes for ADA equivalency and works with the U.S. Access Board, an independent Federal agency, to issue accessibility regulations. For example, the Access Board published the Americans with Disabilities Act Accessibility Guidelines (ADAAG), which the DOJ adopted as the "Standards on Accessible Design". The DOJ also answers some ADA questions directly in the form of letters, usually addressed to U.S. Representatives and Senators. These letters do not have the force of law, but represent the DOJ's opinion on certain matters. Additionally, the DOJ publishes technical assistance material and works with the DBTACs to provide technical assistance. • • DOJ Enforcement Process • Most DOJ enforcement is conducted by the Disability Rights Section of the DOJ Civil Rights Division. However, local U.S. Attorneys may participate in enforcement or the DOJ may resolve some complaints using a mediator. • Unlike the procedures for enforcing Title I of the ADA, individuals with disabilities can file private civil lawsuits to enforce the provisions of Title II and Title III of the ADA without filing an initial administrative complaint with the DOJ. In these cases, the DOJ may decide to intervene in the litigation if it will address a major ADA issue. The DOJ may also choose to file an amicus or "friend of the court" brief to address important legal issues in a private ADA lawsuit. There are three possible outcomes when the DOJ files a lawsuit against an ADA-covered entity. These - An agreement, • Settlement Agreements include: which does not have the force of law, between the DOJ and a covered entity to settle a lawsuit before it goes to trial. The DOJ and the covered entity agree to dismiss the lawsuit, with the covered entity usually agreeing to take certain steps to reach ADA compliance. Continued • Consent Decrees - A formal settlement agreement, which has the force of law, between the DOJ and a covered entity that is subject to judicial approval and supervision. • Court Decisions - If an ADA case where DOJ is a party or has submitted an amicus brief goes to trial or is appealed, a court may issue a decision on the merits of the case. These court decisions have the force of law. (Note: This course discusses many Other Enforcing Agencies • Enforcement of Title II can be referred to other federal agencies with similar missions to the state or local agencies in which a Title II complaint has been filed against a state or local government. The Department of Justice (DOJ) assigns Title II complaints to the following eight agencies: Continued • Department of Agriculture: Farming and the raising of livestock, including extension services. • Department of Education: Education systems and institutions (other than health-related schools), and libraries. • Department of Health and Human Services: Schools of medicine, dentistry, nursing, and other health-related schools; health care and social service providers and institutions, including "grass-roots" and community services organizations and programs; and preschool and daycare programs. • Department of Housing and Urban Development: State and local public housing, and housing assistance and referral. Continued • Department of Interior: Lands and natural resources, including parks and recreation, water and waste management, environmental protection, energy, historic and cultural preservation, and museums. • Department of Labor: Labor and the work force. • Department of Transportation: Transportation, including highways, public transportation, traffic management (non-law enforcement), automobile licensing and inspection, and driver licensing. • Source: Title II Highlights - X. Designated Agencies, U.S. Department of Justice [Ref. 11] Other federal agencies also have ADA compliance responsibilities. • • Federal Transit Administration, an office in the U.S. Department of Transportation, oversees the ADA's paratransit requirement and compliance with accessibility standards for passenger rail and bus service. Federal Communications Commission (FCC) [Ref. 75] is responsible for enforcing Title IV of the ADA, which deals with telecommunications relay services and closed-captioning of certain television broadcasts. Still, other federal agencies provide technical assistance on ADA provisions • • Department of Labor's Office of Disability Employment Policy funds the Job Accommodation Network (JAN) [Ref. 31], a free service that provides information on employment accommodations for people with disabilities. National Institute on Disability and Rehabilitation Research (NIDRR), an office in the Department of Education, funds the ten regional Disability and Business Technical Assistance Centers (DBTACs) [Ref. 28] Definition of Disability • • The ADA protects individuals with disabilities. In order to understand who is protected by the ADA, it is vital to know how the ADA determines disability . The ADA uses a three-part definition of disability. To be considered a person with a disability under the ADA, an individual must meet only one part (not all three). Under the ADA, an individual with a disability is a person who: • • • Has a physical or mental impairment that substantially limits one or more major life activities; Has a record of such an impairment; - For example: a history of cancer, heart disease or mental illness Is regarded as having such an impairment. - For example: having high blood pressure or prominent facial scar on the definition under the Rehabilitation Act. It reflects the specific types of discrimination experienced by people with disabilities. Accordingly, the ADA definition of disability is not the same as the definition of disability in other laws, such as state workers' compensation laws or other federal or state laws that The ADA uses the terms impairment, major life activity, and substantial limitation in its definition of disability. Before you can apply the ADA definition to individuals, it is vital you understand what these phrases mean within the context of disability. Physical or Mental Impairment • A physical impairment is a physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the body systems • A mental impairment is any mental or psychological disorder such as: • Mental retardation • Organic brain syndrome • Emotional or mental illness • Specific learning disabilities Major Life Activity • An impairment is a "disability" under the ADA only if it substantially limits one or more major life activities. A major life activity is an activity an average person can perform with little or no difficulty. • Examples of major life activities include: walking, speaking, breathing, seeing, hearing, learning, caring for oneself, performing manual tasks, sitting, standing, reading. These are examples only; other activities such as sitting, standing, lifting, or reading are also major life activities. • The Supreme Court decided that reproduction is a major life activity in the case of Bragdon vs. Abbott. [Ref. 35] Substantial Limitation • To qualify as a person with a disability under the ADA, an individual must be unable to perform, or be significantly limited in the ability to perform, a major life activity compared to an average person in the general population. Three factors to consider in determining whether a person's impairment substantially limits a major life activity are: • Nature and severity of the impairment • Duration or expected duration of the impairment • Permanent, long term, or expected impact from the impairment. Record of Such an Impairment • The second part of the ADA definition of disability addresses individuals who have a record of an impairment and protects: Continued • People who have a history of a disability, whether or not they currently are substantially limited in a major life activity. • People with a history of cancer, heart disease, or other debilitating illness, whose illnesses are either cured, controlled or in remission. • People with a history of mental illness. • People who may have been misclassified or misdiagnosed as having a disability. • A person who may at one time have been erroneously classified as having mental retardation or having a learning disability. Regarded as Having Such an Impairment • The third part of the ADA definition of disability addresses individuals who are regarded as having an impairment. This part of the definition protects people who are "perceived" as having disabilities from discriminatory decisions based on stereotypes, fears, or misconceptions about disability. Continued • Such protection is necessary because, as the Supreme Court has stated and the Congress has reiterated, "society's myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairments." An individual may be protected under this "regarded as" part of the ADA definition of disability in three circumstances: Continued • The individual may have an impairment that is not substantially limiting but is perceived by the covered entity as constituting a substantially limiting impairment. • Example: Juanita, an individual with mild diabetes controlled by medication, is barred by the staff of a private summer camp from participation in certain sports because of her diabetes. Even though Juanita does not actually have an impairment that substantially limits a major life activity, she is protected under the ADA because she is treated as though she does. Continued • The individual may have an impairment that is only substantially limiting because of the attitudes of others toward the impairment. • Examples: • Kenan, a three-year-old child born with a prominent facial disfigurement, has been refused admittance to a private day care program on the grounds that his presence in the program might upset the other children. Kenan is an individual with a physical impairment that substantially limits his major life activities only as the result of the attitudes of others toward her impairment Continued • The individual may have no impairment but be regarded by the employer or other covered entity as having a substantially limiting impairment . • Examples: • Andrew is excluded from a private elementary school because the principal believes rumors that he is infected with the HIV virus. Even though these rumors are untrue, Andrew is protected under the ADA, because he is being subjected to discrimination by the school based on the belief that he has an impairment that substantially limits major life activities (i.e., the belief that he is infected with HIV). • \ Qualified Person with a Disability • Under the ADA, a qualified person with a disability is someone who meets the essential eligibility requirements with or without reasonable modifications, auxiliary aids and services, or removal of barriers. • The ADA protects people with disabilities from being discriminated against on the basis of their disability. It does not, however, entitle them to jobs, benefits, programs or services for which they are not otherwise qualified. In other words, not every person with a disability is necessarily qualified to receive services from public or private agencies. Examples: • A recreation program for senior citizens requires that participants must be at least 55 years of age or older. The recreation program cannot deny participation to a 60-year-old woman who has mental retardation simply because of her cognitive disability. • On the other hand, a Meals on Wheels program requires that participants must be 55 years of age or older to receive meals. Meals on Wheels does not have to serve a 30-year-old person who is a quadriplegic, no matter how much that person might need such a service. For purposes of determining eligibility for participation in the services and programs offered by a public or private entity, a person with a disability is considered to be qualified if the individual meets the essential eligibility requirements with or without: Reasonable modifications to rules, policies or practices; Auxiliary (communications) aids or services; or Removal of architectural, communications or transportation barriers The "essential eligibility requirements " for participation in many activities may be minimal. • Example: Most public and private entities provide information about their programs, activities and services upon request. In such situations the only 'eligibility requirement' for receipt of such information would be the request of it. • However, under other circumstances, the "essential eligibility requirements" imposed by a public entity may be quite stringent. • Example: A medical school may require those admitted to its programs to have successfully completed specified undergraduate science courses. Title I Employment Provisions • The ADA requires an employer to focus on the essential functions of a job to determine whether a person with a disability is qualified. This is an important nondiscrimination requirement. Many people with disabilities who can perform essential job functions are denied employment because they cannot do things that are only marginal to the job. • Example: A file clerk’s job description may state that the person holding the job answers the telephone. However, the basic functions of the job are to file and retrieve written materials, and telephones actually or usually are handled by other employees. A person whose hearing impairment prevents use of a telephone and who is qualified to do the basic file clerk functions should not be considered unqualified for this position. Association and Retaliation • Disability-based discrimination is not always limited to persons with disabilities. At times, those who associate with individuals with disabilities may be subjects of discrimination. Therefore, the ADA states an entity may not discriminate against individuals or entities because of their relationship (association) with a person with a disability. Continued • Furthermore, retaliation or coercion is prohibited for individuals who exercise their rights under that ADA . Several examples of association and retaliation are provided below. Examples of Association A county recreation center may not refuse admission to a summer camp program to a child whose brother has tuberculosis. A local government could not refuse to allow a theater company to use a school auditorium on the grounds the company has recently performed at a hospice for people with HIV. If a private sports arena refuses to admit an individual with a mobility disability and her sister, due to the individual's mobility impairment, the arena would be discriminating against both individuals. Examples of Retaliation • Private individual named Pam harasses Hailey, an individual who is blind, in an effort to prevent Hailey from attending a concert in a state park. Pam has violated the ADA. • A state tax office delays a tax refund for Amy because Amy testified in a Title II grievance proceeding involving inaccessibility of the tax office. The state has illegally retaliated against Amy. • A restaurant refuses to serve a customer because she filed an ADA complaint against the restaurant. • A dry cleaner refuses to serve an individual because he encouraged another customer to file an ADA complaint against the dry cleaner. Integration • Integration is central to the purpose of the ADA. Individuals with disabilities must be integrated to the maximum extent appropriate. • An individual participating in state and local government programs or private entity programs and public accommodations must be a qualified person with a disability. This means the person must meet the same criteria for the program that persons without disabilities are required to meet. • Example: If participants in a senior citizens activity must all be age 55 or older, then someone with a disability must be at least age 55 to be a qualified person with a disability. Separate programs are permitted when necessary to ensure equal opportunity. Examples: Example • Museums do not typically allow visitors to touch exhibits because handling can cause damage to the objects. A municipal museum may offer a special tour for individuals with vision impairments during which they are permitted to handle these objects on a limited basis. • A private athletic facility may sponsor a separate basketball league for individuals who use wheelchairs. However, individuals with disabilities cannot be required to accept separate benefits. Individuals with disabilities are entitled to participate in the regular program even if an entity believes the individuals could not benefit from the program. Examples: • A museum can't exclude a person who is blind from a tour because of assumptions about his/her inability to benefit from the tour experience. • A deaf person can't be excluded from a concert because of the belief that the person cannot enjoy music. Lastly, individuals with disabilities may not be excluded from regular programs, although direct threat and legitimate safety requirements still apply. Examples: • State cannot require that an individual with a mobility disability apply for a special automobile license if she or he prefers to use a regular plate. • A supermarket cannot require that an individual who uses a wheelchair use an adapted shopping cart if she or he chooses not to Equal Opportunity • People with disabilities must not be denied equal opportunity to participate and benefit from programs and services. This requirement parallels the requirements of the Civil Rights Act of 1964. • Examples: • A city may not refuse to admit a person to a city council meeting because she or he is deaf. • A theater may not refuse to admit a person with mental retardation to theater because of his or her disability. people with disabilities must be afforded the opportunity to participate in programs, activities, goods, and services. Examples: • city recreation department may not prevent a child who is blind from participating in an after school activity program. • A zoo may not refuse to admit people with Down's Syndrome. • A clerk in a video store may not refuse to rent an adult movie to an adult with mental retardation. • A hair stylist may not refuse to cut the hair of someone with extensive facial The ADA does not guarantee that the person with a disability achieve an identical result or level of achievements as people without disabilities. Examples: • An individual who uses a wheelchair may not be excluded from an exercise class at a health club because she or he cannot do all of the exercises and achieve the same result as persons without disabilities. • Someone who is blind cannot be refused the opportunity to attend a movie. Even though that person may not be able to see the action on the screen, she or he must be allowed the opportunity to enjoy the experience of attending the movie with friends or family members. The ADA also permits the provision of additional services and benefits to people with disabilities that are not generally provided to individuals without disabilities. However, people with disabilities cannot be required to take advantage of those different services and benefits. Instead, if they want to do so, they must be allowed to participate in the services and benefits offered to the general public. Examples: • A museum offers a tour once a week on Fridays that allows individuals who are blind to touch the objects. However, Juan, an individual who is blind, chooses to take a standard tour at the museum on Tuesday. The museum must allow Juan to take the standard tour even though they offer another tour that would allow Juan to touch the museum objects. Eligibility Criteria • Eligibility criteria intended to screen out people with disabilities as well as neutral criteria that have the result of screening out people with disabilities are prohibited unless the criteria are necessary for the provision of the service, program or activity. Example • Example: A county recreation program requires that participants be able to walk to participate in a county-sponsored advanced free-style swim class, assuming that users of wheelchairs probably can't swim well enough to participate. An unnecessary blanket exclusion like this violates the ADA • However, the county-sponsored swim class can require that all participants complete the prerequisite class, “Beginner’s Free Style Swimming”. Eligibility criteria like this are permissible when an entity can show that requirements are necessary for the provision of service Reasonable Modifications • When necessary to ensure equal opportunity and avoid discrimination, public and private entities must make reasonable modifications to their policies, practices, and procedures. • This obligation requires public and private entities to deal flexibly with unanticipated situations in a way that does not deny people with disabilities an equal opportunity to participate. The obligation applies to written as well as informal policies, practices and Example • Under its obligation to remove architectural barriers where it is readily achievable to do so, a local motel has greatly improved physical access in several of its rooms. However, under its present reservation policy, the motel does not guarantee that, when a person requests an accessible room, one of the new rooms will actually be available when he or she arrives. The ADA requires the motel to make reasonable modifications in its reservation policy to ensure the availability of the accessible room. A public or private entity is not required to make the modification if it can demonstrate that a modification would fundamentally alter the nature of its service, program, or activity. Example • An individual with low vision asked the manager of a planetarium to raise the lights so he could read the large print program transcript provided. However, the planetarium is not required to modify its practice of low lighting as this would fundamentally alter the experience for everyone, given that the darkened room is required for the solar system experience What is Effective Communication? • Communication with individuals with disabilities must be as effective as communication with others. The effective communication obligation extends to individuals with disabilities who have physical and mental impairments, such as vision, hearing, or speech impairments, that substantially limit the ability to communicate. Under the ADA, communication barriers must be eliminated that prevent individuals with disabilities from enjoying equal opportunity to participate in and benefit from: Programs, services and activities of state and local governmental entities; Goods, services or activities offered by public accommodations; and Employment opportunities in both the public and private sectors. The obligation to communicate effectively with people who have disabilities applies to the presentation and exchange of information in all forms including sound, print, graphics and voice. Example • Hospitals that provide televisions for use by patients and hotels, motels and places of lodging that provide televisions in five or more guest rooms, must provide closed caption decoder service upon request. • Tax bills and other print communication by a state or local government must be made available to individuals with vision impairments in a form that is usable by them. Large print, Braille, diskette and audio tapes would need to be produced upon request to ensure effective communication. Auxiliary Aids and Services • Auxiliary aids and services include a wide range of devices, techniques and procedures that enable persons with disabilities to participate fully in the exchange of information. The type of auxiliary aid or service necessary to ensure effective communication will vary in accordance with the length and complexity of the communication involved Example • Hector, an individual who is deaf, is shopping for film at a camera store. Exchanging written notes with the sales clerk would be adequate to ensure effective communication. He then stops by a new car showroom to look at the latest models. The car dealer would be able to effectively communicate general information about the models available by providing brochures and exchanging notes by pen and notepad, or perhaps by means of taking turns at a computer terminal keyboard. If Hector becomes serious about making a purchase, the services of a qualified interpreter may be necessary because of the complicated nature of the communication involved in buying a car. Who is Obligated to Provide Effective Communication? • Under the ADA, effective communication obligations apply to: • Private entities, • Employers in both the public and private sectors. • Public accommodations, • State and local government entities, • Private entities: Appropriate aids and services could range from simply offering the use of paper and pen to communicate with a customer who has a speech or hearing disability to having large print handouts available at a conference. However, as a general rule a private entity is not required to alter its inventory to carry accessible or special products that are designed or easier to use by customers with Let's further explore examples of effective communication for each of these groups Example • A bookstore customarily carries only regular print versions of books. The ADA does not require the bookstore to expand its inventory to include large print books or books on audiotapes. However, the bookstore may be required to special order the large print or audio books if it regularly makes special orders for unstocked goods and the accessible goods can be requested from its regular supplier. reasonable accommodations to applicants when necessary to afford equal employment opportunity. They are also required for employees as reasonable accommodations to enable them to perform the essential functions of the job and to fully enjoy all the benefits of employment, unless provision of such aids and Public entities: Communications with individuals who have disabilities must be as effective as communications with other persons participating in the public entities' programs, services and activities. Example: • Informational materials published by state and local governments must be made available in a variety of different formats upon request. These include large print versions, diskette, audiocassettes and Braille. • Seasonal guides to town-sponsored recreational activities should be readily available in large print or diskette formats and should be converted to audiocassettes or Braille upon request from a local resident. • Meetings, forums, and programs sponsored by state and local government entities should be accessible to individuals with a variety of disabilities, including hearing and speech impairments. Assistive listening devices should be provided, and videotapes shown should all be open captioned. In addition, every effort should be made to secure the services of sign language interpreters upon request. Even when interpreter services are requested less than 24 hours before the event, state and local governments should make their best efforts to hire interpreters. Surcharges • Additional charges or surcharges cannot be imposed on people with disabilities to cover the costs of providing ADA-mandated access to goods and services such as auxiliary aids and services, barrier removal, alternatives to barrier removal and/or other modifications that provide an equal opportunity to people with disabilities. • Example: A movie theater cannot charge persons with hearing impairments a rental fee for using their assistive listening devices while watching a movie. Direct Threat • Reference: ADA Title I Technical Assistance Manual, 4.5 [Ref. 9] ADA Title II Technical Assistance Manual, 2.8000 [Ref. 13] ADA Title III Technical Assistance Manual, 3.8000 [Ref. 16] An individual with a disability may be excluded if she or he poses a direct threat to the health or safety of others. If an individual poses a direct threat to the health or safety of others, he or she is not considered a qualified individual with a disability. Therefore, an entity may exclude an individual from an activity, and an employer is not required to hire or continue to employ an individual, if the individual poses a direct threat to the heath or safety of self or others. case basis. For an individual with a disability to pose a direct threat, there must be significant risk of substantial harm ; the threat cannot be remote or unlikely. Also, like any qualification standard, this requirement must apply to all applicants, employees and An assessment of direct threat must be strictly based on valid medical analyses and/or other objective evidence. The abilities or limitations of the particular individual must be evaluated. Example: • An employer cannot assume that a person with a mobility disability who has restricted manual dexterity cannot work in a laboratory because she or he will pose a risk of breaking vessels with dangerous contents. However, a person with epilepsy, who has lost consciousness during seizures within the past year, might seriously endanger her own life and the lives of others if employed as a bus driver. If an individual appears to pose a direct threat because of a disability, the covered entity must first try to eliminate or reduce the risk to an acceptable level with reasonable accommodation or reasonable modification of policies, practices and procedures Examples: • A volunteer who has a hearing impairment and wants to answer emergency calls for a small town volunteer fire department might pose a direct threat if the hearing impairment interferes with his or her ability to hear callers. However if this threat can be reduced to acceptable levels or eliminated entirely by the provision of an auxiliary aid such as a telephone with amplification, this individual does not pose a direct threat. • An elementary school teacher who has tuberculosis may pose a risk to the health of children in her classroom. However, with proper medication, this person's disease would be contagious for only a two-week period. With an accommodation of twoweeks absence from the classroom, this teacher would not pose a "direct threat. What are My Responsibilities as an Employer under Title I? • Source: Your Responsibilities as an Employer Under the Americans with Disabilities Act of 1990 [Ref. 73] Covered employers are required to provide reasonable accommodations to qualified persons with disabilities so they may have an employment opportunity equal to that available to individuals without disabilities. In order to be protected by the ADA, an individual with a disability must be qualified to perform the essential functions of the job; these are the basic job duties that an employee must be able to perform with or without reasonable accommodation. Collectively, this means that the applicant or employee must: satisfy your job requirements for educational background, employment experience, skills, licenses, and any other qualification standards that are job related; and be able to perform those tasks that are essential to the job, with or without reasonable accommodation. It is a violation of the ADA to fail to provide reasonable accommodation to the known physical or mental limitations of a qualified individual with a disability, unless to do so would impose an undue hardship on the operation of your business. Employers are not required to lower quality or production standards to make an accommodation, nor is an employer obligated to provide personal use items such as glasses or hearing aids. The ADA does not interfere with your right to hire the best qualified applicant. Nor does the ADA impose any affirmative action obligations. The ADA simply prohibits you from discriminating against a qualified applicant or employee because of her or his disability In identifying an essential function to determine if an individual with a disability is qualified, you should focus on the purpose of the function and the result to be accomplished, rather than the manner in which the function presently is performed. Examples: • For a computer programming job, the essential function is the ability to access, input, and retrieve information from the computer. It is not relevant whether the information is entered manually, or visually read on the computer screen; adaptive devices or computer software can enable a person without arms or a person with impaired vision to perform the essential functions of the job. • For a dock loading job, the essential function is to move heavy packages from the dock to a storage room. It is not relevant how a person moves the packages; instead of being hand-lifted and carried, a cart or dolly or hand truck could be used to perform the essential functions of the job. Defenses of Title I • Source: ADA Title I Technical Assistance Manual 3.9, 4.5 [Ref. 9]; Your Employment Rights as an Individual with a Disability Under the Americans with Disabilities Act of 1990 [Ref. 72]. There are circumstances under which the general requirements of the ADA do not apply; these limitations are known as "defenses". The defenses that apply to Title I are: undue hardship, fundamental alteration and health or safety. Undue Hardship / Fundamental Alteration Defense • An employer is not required to provide an accommodation if it will impose an undue hardship on the operation of its business. As defined by the ADA, an undue hardship is an action that is unduly costly, extensive, substantial, or disruptive, or would fundamentally alter the nature or operation of the business. • If a particular accommodation would be an undue hardship, the employer must try to identify another accommodation that will not pose such a hardship. If cost causes the undue hardship, alternative funding for an accommodation must be considered whether from an outside source, such as a vocational rehabilitation agency, or possibly offset by state or federal tax credits or deductions. You must also give the applicant or employee with a disability the opportunity to provide the accommodation or pay for the portion of the accommodation that constitutes an undue hardship. • • overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; • number of persons employed at the facility and the effect on expenses and resources; • overall financial resources of the covered entity; • overall size of the business of a covered entity with respect to the number of its employees; • number, type, and location of its facilities; • type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; and • geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity. In determining undue hardship, factors to be considered include the: nature and cost of the accommodation; Example • It might "fundamentally alter" the nature of a temporary construction site or be unduly costly to make it physically accessible to an employee using a wheelchair, if the terrain and structures are constantly changing as construction progresses. • If an employee objects to working with an individual who has a disability because the employee feels uncomfortable or dislikes being near this person, this would not constitute an undue hardship. In this case, the problem is caused by the employee's fear or prejudice toward the disability of the individual, not by an accommodation. Health or Safety Defense • An employer is not required to hire or continue to employ an individual, if the individual poses a "direct threat" to the health or safety of self or others. In determining "direct threat": • The assessment must be strictly based on valid medical analyses and/or other objective evidence, and not on speculation. • There must be a "significant risk of substantial harm.", not just a possibility or slight risk. • Like any qualification standard, this requirement must apply to all applicants and employees, not just to If an individual poses a direct threat because of a disability, the employer must first try to eliminate or reduce the risk to an acceptable level with reasonable accommodation. If an effective accommodation cannot be found, the employer may refuse to hire an applicant or discharge an employee who poses a direct threat Example: • A highly qualified experienced worker was rejected for a sheet metal job because of a company's general medical policy excluding anyone with epilepsy from this job. The company asserted this person posed a danger to himself and to others because of the possibility that he might have a seizure on the job. However, this individual had been seizure-free for 6 years and co-workers on a previous job testified he carefully followed his prescribed medication schedule. The company was found to have discriminated against this individual and was required to hire him, incurring large back pay and other costs. Reasonable Accommodation • Reasonable accommodation is any modification or adjustment to a job, an employment practice, or the work environment that makes it possible for an individual with a disability to have an equal employment opportunity. Reasonable accommodation allows an individual to overcome a barrier in the work environment that will allow the individual with a disability to function effectively as an employee or as a potential employee. Examples of Reasonable Accommodation • Removing deep pile carpeting in a work area (or placing a usable surface over the carpet) so an individual can propel a manual wheelchair. • Reassigning an employee who loses her sight to a vacant position that does not require driving. • Permitting use of accrued paid leave or unpaid leave for necessary treatment. • Providing reserved parking for a person with a mobility impairment. • Providing a dolly or hand-truck to move materials from one spot to another, instead of lifting. • Obtaining or modifying equipment or devices • Modifying examinations, training materials or policies • Providing qualified readers and interpreters When Is Reasonable Accommodation Required? • Reasonable accommodation is required in three areas: application process, essential functions of a job, benefits and privileges. Reasonable accommodation applies to the application process. -A person who uses a wheelchair may need relocation of the second-story interview site to a ground floor room. -A person with a visual disability or a person who lacks manual dexterity may need assistance in filling out an application form. -A person who has a visual disability may need a qualified reader. -A person who is deaf may need an interpreter. Reasonable accommodation enables a qualified individual with a disability to perform the essential functions of a job. These "essential functions" are the fundamental job duties of the employment position and do not include marginal or occasional duties. - A job description for a file clerk may include answering the telephone. The essential functions of the job, however, are to file and retrieve materials. If the telephones usually are answered by other employees, then answering them would be a marginal function. Reasonable accommodation may also be needed to enable employees with disabilities to have access to the benefits and privileges of employment. Under Title I of the ADA, employees with disabilities must have equal access to lunchrooms, employee lounges, restrooms, meeting rooms, and other employer-sponsored services such as health programs, transportation, and social events. Equal access must be considered on a caseby-case basis, dependent upon the facts of the particular situation. What Questions Can Job Applicants Be Asked? • Applicants can be asked questions about ability to perform job-related functions, as long as the questions are not phrased in terms of a disability. Applicants can also be asked to describe or to demonstrate how, with or without reasonable accommodation, to perform job-related functions. An employer may describe the specific functions of a job. The questions asked should focus on the applicant’s ability to perform the job, not on a disability. Examples: • If a person has only one arm and an essential function of the job is to drive a car, the interviewer should not ask if or how the disability would affect his person’s driving. The person may be asked if s/he has a valid driver’s license, and whether s/he can perform any special aspect of driving that is required, such as frequent long-distance trips, with or without an Even if the applicant has a visible disability (for example, uses a wheelchair or a guide dog, or has a missing limb) or has volunteered information about a disability, the interviewer may not ask questions about: the nature or severity of the disability, the condition causing the disability, any prognosis or expectation regarding the condition or disability, whether the individual will need or request leave for treatment or for other reasons Only after a job offer is made and prior to the start of employment duties, an applicant may be required to take a medical examination if everyone who will be working in that job category must also take the examination. The job offer may be conditioned on the results of the medical examination. However, if an individual is not hired because a medical examination reveals the existence of a disability, an employer must be able to show that the reasons for exclusion are job related and necessary for conduct of the business. The employer also must be able to show that there was no reasonable accommodation that would have made it possible for the individual to perform the essential job functions. Once someone is hired, the employer cannot require a medical examination or ask an employee questions about disability unless she or he can show that these requirements are job related and necessary for the conduct of your business. Voluntary medical examinations that are part of an employee health program may be conducted at any time. The results of all medical examinations must be kept confidential, and maintained in separate medical files. Coordination of Title I and Title II • Source: ADA Title I Technical Assistance Manual [Ref. 9]; ADA Title II Technical Assistance Manual, 4.0000 [Ref. 13] Continued • One part of the ADA that is enforced by the Equal Employment Opportunity Commission (EEOC) outlaws job discrimination by all employers, including state and local government employers, with 15 or more employees. • Another part of the ADA that is enforced by the U.S. Department of Justice (DOJ), prohibits discrimination in state and local government programs and activities, including discrimination by all state and local governments, regardless of the number of employees. Continued • Because the ADA establishes overlapping responsibilities in both EEOC and DOJ for employment by state and local governments, the Federal enforcement effort is coordinated by EEOC and DOJ to avoid duplication in investigative and enforcement activities. • In addition, since some private and governmental employers are already covered by nondiscrimination and affirmative action requirements under the Rehabilitation Act of 1973, EEOC, DOJ and the Department of Labor similarly coordinate the enforcement effort under the ADA and the Rehabilitation Act. • For those public entities subject to Title I of the ADA, Title II adopts the standards of Title I. In all other cases (executive agencies of the U.S. Government), the Section 504 standards for employment apply. In the 1992 Reauthorization of the Rehabilitation Act, Section 504 was amended so that its provisions barring employment discrimination are now identical to those under Title I. Enforcement of Title II • Reference: ADA Title II Technical Assistance Manual, 3.7100 [Ref. 13] Private parties may bring lawsuits to enforce their rights under Title II of the ADA. The remedies available are the same as those provided under Section 504 of the Rehabilitation Act of 1973, which include court orders to stop discrimination, the termination of federal funding, damages, reasonable attorney's fees, and litigation costs and expenses. Individuals may also file complaints with appropriate administrative agencies. Furthermore, complaints may be filed with any federal agency that provides financial assistance to the program in question, or with the Department of Justice, which will refer the complaint to the appropriate agency. A complaint must be filed within 180 days of the date of the alleged act of discrimination, unless the time for filing is extended by the federal agency for good cause. As long as the complaint is filed with any federal agency, the 180-day requirement will be considered satisfied. Eight federal agencies are designated to handle complaints filed under Title II. The agencies enforce Title II within certain functional areas for components of State and local governments that exercise responsibilities, regulate, or administer services, programs, or activities related to a specific