Americans with Disabilities Act (Great Events from History: North American Series)
Article abstract: The ADA, a landmark legislation, provides comprehensive civil rights protections for persons with disabilities.
Summary of Event
The Americans with Disabilities Act (ADA) of 1990 provides civil rights protections that prohibit discrimination against people with disabilities in employment, public services, public accommodations, transportation, and telecommunications. Prior to passage of the ADA, discrimination against people with disabilities was prohibited only in federally funded programs by authority of the Rehabilitation Act of 1973 and the Fair Housing Act Amendments of 1988. The ADA was far more expansive in scope. Passage of the ADA gave people with disabilities similar protections to those that are provided to persons on the basis of race, sex, national origin, and religion by the 1964 Civil Rights Act. The passage of the ADA marked a shift in the making of civil rights policy from the judicial branch to the legislative branch of government. It has been considered the most significant piece of civil rights legislation since the passage of the Civil Rights Act of 1964. The stated purpose of the ADA is “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.”
It is estimated that forty-three million people in the United States have physical and/or mental disabilities. The social and economic conditions of...
(The entire section is 1297 words.)
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Americans with Disabilities Act (Encyclopedia of Nursing & Allied Health)
The Americans with Disabilities Act (ADA) was a bill passed by the United States Congress signed into law by President George Bush on July 26, 1990.
The purpose of the ADA was to make society more accessible to people with disabilities. The ADA applies to qualified individuals with disabilities who (1) have physical or mental impairments that substantially limit one or more major life activities; (2) have a record of such impairments; or (3) are regarded as having such impairments. In addition, the ADA protects persons from discrimination based on an association or relationship with an individual with a disability.
A qualified individual with a disability is defined as a person who meets legitimate skill, experience, education, or other requirements for a position, and who is able to perform the essential functions of the position with or without reasonable accommodation. Requiring that an individual be capable of performing essential functions assures that such an individual will not be disqualified simply due to an inability to perform marginal job functions. If the individual is qualified to perform essential job functions, except for limitations caused by a disability, the employer must consider whether the individual could perform these functions with a reasonable accommodation. A written job description, prepared prior to advertising or interviewing applicants for a job, may be considered evidence of the job's essential functions.
Examples of major life activities may include seeing, hearing, speaking, walking, breathing, performing manual tasks, learning, self-care, and working. The ADA covers, for instance, individuals with epilepsy, paralysis, HIV, AIDS, substantial hearing or vision impairment, mental retardation, or specific learning disabilities. It also covers the individual with a record of a disabilityfor example, a person who has recovered from cancer or mental illness.
The ADA protects individuals who are regarded as having a substantially limiting impairment, even though they may not have such an impairment. For example, the ADA protects a qualified individual with a physical disfigurement from being denied employment because an employer is concerned how customers or coworkers might react.
The ADA also protects individuals from company or organization actions based on assumptions that a employee/member's relationship with a person with a disability would affect his or her job performance, and from actions resulting from bias or misinformation concerning certain disabilities. For example, the ADA protects a person whose spouse has a disability from being denied employment because the employer assumes that the applicant would require excessive leave to care for the spouse. The individual who is involved in volunteer work with people who have AIDS is also protected from employment discrimination by the ADA, if such discrimination is motivated by that relationship or association.
Civil rights protections similar to other legislation that provides protection on the basis of race, color, sex, national origin, age, and religion are also provided by the ADA; it also guarantees equal opportunity for individuals with disabilities in public accommodations, employment, transportation, government services, and telecommunications. Discrimination in all employment practices, including job application procedures, hiring, firing, advancement, compensation, training, recruitment, advertising, tenure, layoff, leave, fringe benefits, and all other employment-related activities, is controlled by the ADA.
With regard to both private and public sector employment, including state and local government services, companies with 15 or more employees are also subject to the ADA. Specifically, businesses must accommodate employees or customers with disabilities unless doing so represents an undue hardship or a direct threat to the health or safety of others.
Although the ADA is intended to protect those with disabilities from discrimination, employers are not expected to give preference to a qualified applicant with a disability over other applicants. An employer remains free to select the most qualified applicant available and to make decisions based on reasons unrelated to a disability.
Financial assistance for employers
To enable smaller employers to make reasonable accommodations, a special tax credit is available. A tax credit of up to $5,000 per year for accommodations, made to comply with the ADA, may be taken by an eligible small business. A full tax deduction of up to $15,000 per year is available to any business for expenses incurred during the removal of qualified architectural or transportation barriers. Covered expenses include removing barriers created by steps, narrow doors, inaccessible parking spaces, restroom facilities, and transportation vehicles.
|U.S. government agencies providing assistance with Americans with Disabilities Act|
|For questions about:||Consult these agencies:||Contact information:|
|E=has enforcement authority; G=issues guidelines; P=administers programs relevant to successful implementation of the Act; R=issues regulations; TA=provides technical assistance on how to comply.|
|SOURCE: Rothstein, J.M., S.H. Roy, and S.L. Wolf. The Rehabilitation Specialist's Handbook. 2nd ed. Philadelphia: F.A. Davis Co., 1998.|
|Employment (Title I)||Equal Employment Opportunity Commission (R,TA,E)||1801 L Street NW, Washington, DC 20554.|
|National Institute on Disability and Rehabilitation Research, Dept. of Education (TA)||400 Maryland Ave. SW, Washington, DC 20202-2572|
|President's Committee on Employment of People with Disabilities (TA)||1331 F Street NW, Third Floor, Washington, DC 20004|
|Small Business Administration, Office of Advocacy, Office of Economic Research (TA)||409 Third Street NW, Fifth Floor, Washington, DC 20416|
|Social Security Administration, Office of Disability (P)||Room 545, Altimeyer Building, 6401 Security Blvd., Baltimore, MD 21235|
|Public services (Title II)||Office on the AD Act, Civil Rights Division, Dept. of Justice (R,TA,E)||P.O. Box 66118, Washington, DC 20035-6118|
|Dept. of Transportation (R,TA,E)||400 Seventh Street SW, Room 10424, Washington, DC 20590|
|Public accomodations (Title III)||Architectural and Transportation Barriers Compliance Board (G,TA)||1331 F Street NW, Suite 1000, Washington, DC 20004-1111|
|Office on the AD Act, Civil Rights Division, Dept. of Justice (R,TA,E)||PO Box 66118, Washington, DC 20035-6118|
|Dept. of Transportation (R,TA,E)||400 Seventh Street SW, Room 10424, Washington, DC 20590|
|Telecommunications (Title IV)||Federal Communications Commission (R,TA,E)||1919 M Street NW, Washington, DC 20554|
|Accessibility||Architectural and Transportation Barriers Compliance Board (G,TA)||1331 F Street NW, Suite 1000, Washington, DC 20004-1111|
|Rehabilitation and independent living services||National Institute on Disability and Rehabilitation Research, Dept. of Education (P)||400 Maryland Ave. SW, Washington, DC 20202-2572|
|Tax law provisions||Internal Revenue Service, Dept. of Treasury (TA)||1111 Constitution Ave., Ben Franklin Station, Washington, DC 20224|
The ADA's employment provisions are enforced under the same procedures now applicable to race, color, sex, national origin, and religious discrimination under title VII of the Civil Rights Act of 1964 and the Civil Rights Act of 1991. Available remedies include hiring, reinstatement, promotion, back pay, front pay, restored benefits, reasonable accommodation, attorneys' fees, expert witness fees, and court costs. Compensatory and punitive damages also may be available in cases of intentional discrimination or where an employer fails to make a good faith effort to provide a reasonable accommodation.
Despite the ADA's laudable intentions, it is not without critics. It is pointed out by those who find fault with the ADA that its definitions are too broad, vague, or illdefined. Others suggest that unnecessary litigation has been spawned by the ADA, which has not been effective in moving those with disabilities from welfare to the workforce, and requires employers to shoulder burdensome costs to accommodate individuals with disabilities despite available tax credits available from the federal government.
American Disabilities Act defenders point out an example of a recent study reporting that companies' insurance costs rarely rise because of hiring individuals with disabilities. Obvious benefits generated by the ADA are also observed by supporters. Among these benefits are increased attention to pervasive discrimination against and widespread unemployment of people with disabilities, and their willingness and potential to contribute to society. Stereotypes about people with disabilities have been revealed by studies. It is clear that people with disabilities are hired less and fired more than other employees.
According to the ADA, employers may conduct employee medical examinations when there is evidence of a job performance or safety problem, when it is required by federal law, when it is necessary to determine an individual's fitness to perform a particular job, or when voluntary examinations are part of employee health programs. However, information from medical examinations must be kept confidential. According to the ADA,
testing for illegal drug use is not considered part of a medical examination.
An employer may not ask or require an applicant to take a medical examination before extending a job offer. Furthermore, pre-employment inquiries about a disability or the nature or severity of a disability cannot be made by an employer. However, questions may be asked by the employer about the individual's ability to perform specific job functions. In addition, an individual with a disability may be asked by an employer to describe or demonstrate how he or she would perform such functions.
An employer may qualify a job offer based on a satisfactory post-offer medical examination or medical inquiry, provided this is required of all employees in the same job category. A post-offer examination or inquiry does not have to be job related.
In the event that a post-offer medical examination or inquiry reveals a disability and the individual is not hired, the reason for the rejection must be job related. An employer must show that reasonable accommodations were not available to enable the individual to perform the essential job functions, or that such accommodations would have imposed an undue hardship. A post-offer medical examination may disqualify an individual. If the employer can demonstrate that a direct threat in the workplacehat is, that a significant risk or substantial harm to the health or safety of the individual would also pose a direct threat in the workplace significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced below the direct threat level through reasonable accommodation. Such a disqualification must be job related and consistent with business necessity. In addition, an individual with a disability who is able to perform essential job functions may not be disqualified due to speculation that the disability may cause a risk of future injury.
A reasonable accommodation is any modification or adjustment to a job or the work environment that enables a qualified applicant or employee with a disability to participate in the application process or to perform essential job functions. A reasonable accommodation includes adjustments to assure that a qualified individual with a disability is provided with the same employment rights and privileges extended to employees without disabilities.
Reasonable accommodation may include making existing facilities used by employees readily accessible to, and usable by, an individual with a disability. In addition, it may involve restructuring a job; modifying work schedules; acquiring or modifying equipment; providing qualified readers or interpreters; or appropriately modifying examinations, training, or other programs. Reasonable accommodation also may include reassigning a current employee to a vacant position for which he or she is qualified, if the person is unable to do the original job because of a disability even with an accommodation. However, an employer is not obligated to find a position for an applicant who is not qualified for the position sought, nor are employers required to lower quality or quantity standards as an accommodation.
Appropriate accommodation decisions must be based on the facts in each casehat is, whether the accommodation will provide an opportunity for a person with a disability to achieve the same level of performance and the potential to enjoy benefits equal to those of a person without a disability. However, the accommodation does not have to ensure equal results or provide exactly the same benefits.
An employer is only required to accommodate a known disability of a qualified applicant or employee. The requirement is typically initiated by a request from an individual with a disability. Accommodations must be made on an individual basis since the nature and extent of a disabling condition and the requirements of a job vary with each case. If the individual does not request an accommodation, the employer is not obligated to provide one except where an individual's known disability impairs the ability to know of, or effectively communicate a need for, an accommodation obvious to the employer. If an appropriate accommodation is requested by a person with a disability (but not suggested by the employer, who cannot "suggest" this), the employer and the individual should work together to identify one. There are a number of resources that provide assistance without cost.
An employer is not required to make an accommodation if it would impose an undue hardship on the employer's business. Undue hardship is defined as an "action requiring significant difficulty or expense." This includes the nature and cost of the accommodation in relation to the size, resources, nature, and structure of the employer's operation. Undue hardship is determined on an individual basis. In general, a larger employer with greater resources would be expected to make accommodations requiring greater effort or expense than a smaller employer with fewer resources.
If an accommodation represents an undue hardship, the employer must try to identify another accommodation that will not pose such a hardship. Also, if the cost of an accommodation would impose an undue hardship on the employer, the individual with a disability should be given the option of paying that portion of the cost that would constitute an undue hardship or provide the accommodation.
The employer is obligated to provide access for an individual applicant to participate in the job application process, and for an individual employee with a disability to perform the essential functions of the job, including access to a building, the work site, necessary equipment, and all facilities used by employees.
However, an employer is not required to make existing facilities accessible until an employee with a disability needs an accommodation. The employer does not have to make changes to provide access in places or facilities that will not be used by that individual for employment-related activities or benefits.
Accommodations may be needed to assure that tests or examinations measure the actual ability of an individual to perform job functions, rather than reflect limitations caused by the disability. Tests should be given to people who have sensory, speaking, or manual impairments in a manner that does not require the use of the impaired skill, unless the test is designed to measure a job-related skill.
Anonymous. "Your Rights." Accent on Living 44 no. 4 (Spring 2000): 38 39.
Clegg, R." The costly compassion of the ADA." The Public Interest (July 15, 1999).
Fisher, A." Readers Weigh in on the ADA and Finding Mentors." Fortune 140 no. 1 (July 5, 1999): 192.
Goldfein, R. and S. Velazquez. "AIDS and the ADA: Protection from Perception." Trial 35 no. 10 (October 1999): 42-45.
Hall, J. and D. Hatch. "ADA May Require Reassignment to Vacant Job." Workforce 78 no. 9 (September 1999): 94.
Kazanjian, L. and S. Weinhaus. "Should Correctable Conditions Count as Disabilities Under the ADA?" Business and Health 17 no. 8 (August 1999): 47-48.
Shellenbarger, S. "A Little-Known Part of the Disabilities Act Protects Caregivers." Wall Street Journal (August 23,2000).
Van Detta, J. A. "Typhoid Mary Meets the ADA: A Case Study of the Direct Threat Standard Under the Americans with Disabilities Act." Harvard Journal of Law and Public Policy 27 no. 3 (Summer 1999): 849-958.
Americans with Disabilities Act Document Center. <<a href="http://janweb.icdi.wvu.edu/kinder/index.htm">http://janweb.icdi.wvu.edu/kinder/index.htm>.
Americans with Disabilities Act of 1990, 42 U. S. C. 12101-12213 (1990). <<a href="http://www.usdoj.gov/crt/ada/pubs/ada.txt">http://www.usdoj.gov/crt/ada/pubs/ada.txt>.
U.S. Department of Justice. Americans with Disabilities ADA Homepage. <<a href="http://www.usdoj.gov/crt/ada/adahom1.htm">http://www.usdoj.gov/crt/ada/adahom1.htm>.
Bill Asenjo, M.S., C.R.C.
Americans with Disabilities Act (Encyclopedia of Business and Finance)
The Americans with Disabilities Act of 1990 (ADA) is a comprehensive civil rights act for people with disabilities. On July 26, 1990, President George Bush signed the ADA into law as wide-ranging legislation intended to make American society more accessible to people with disabilities and to prohibit discrimination on the basis of disability. The act is divided into five titles:
- Employment. Businesses must provide reasonable accommodations in all aspects of employment to protect the rights of individuals with disabilities.
- Public services. People with disabilities cannot be denied participation in public service programs or activities that are available to people without disabilities.
- Public accommodations. All new construction must be accessible to individuals with disabilities.
- Telecommunications. Telecommunication companies must have a telephone relay service for individuals who use telecommunications devices for the deaf (TTYs) or similar devices.
- Miscellaneous. This title includes a provision prohibiting coercing, threatening, or retaliating against individuals with disabilities or those assisting them in asserting their rights under the ADA.
The protection of the ADA applies primarily, but not exclusively, to individuals with physical and mental disabilities.
Built on a foundation of statutory, legal, and programmatic experience, the ADA was modeled after the Civil Rights Act of 1964 and the Rehabilitation Act of 1973. In order to understand the basis for the enactment of the ADA, one must look at certain historical events of the 1970s and the disability rights movement. First and fore-most has been the desire of individuals with disabilities to work toward their goal of full participation in American society, which led to the Rehabilitation Act of 1973 and the Individuals with Disabilities Education Act of 1974 that so strongly influenced the ADA.
Effects the ADA may have on businesses include restructuring or altering the layout of a building, modifying equipment, and removing barriers. For example, in September 1999, Greyhound Bus Lines of Dallas, Texas, removed architectural barriers and began to provide assistance to passengers with disabilities by means of lift-equipped buses. Another example of the effects of the ADA occurred in February 1997, when Harrison County, Mississippi, gave people who are deaf or hard of hearing an equal opportunity to serve as jurors.
The Americans with Disabilities Act of 1990 has been regarded as the most sweeping piece of legislation since the Civil Rights Act of 1964. More information on the ADA is available at (800)514-0301 (voice) or (800)514-0383 (TDD).
The Consumer Law Page; http://consumerlawpage.com
Department of Rehabilitation Web Site; http://www.rehab.cahwnet.gov/adaoview.htm#overview
Indiana University/Purdue University Web Site; http://www.iupui.edu/~aao/legis.html
Job Accomodation Network; http://janweb.icdi.wvu.edu/kinder/overview/htm
U.S. Department of Justice Web Site; http://www.usdoj.gov/crt/ada/adahom1.htm
Educational Accommodations (Encyclopedia of Everyday Law)
The Fourteenth Amendment to the Constitution provides: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without
DUE PROCESS OF LAW; not deny any person withinits
JURISDICTION the EQUAL PROTECTION of the laws." These rights have been extended to many groups throughout the history of the United States, and the Americans with Disabilities Act spells out how those living with disabilities may not be barred from any educational situation.
The DISABILITY rights movement used similar tactics and strategies to fight to extend the "equal protection of the laws" to those with physical or mental handicaps following the passage of the CIVIL RIGHTS
Act of 1964. The first success the disability rights movement had was with Section 504 of the Rehabilitation Act of 1973. Based on the models of previous laws with prohibited discrimination based on race or gender, Section 504 prohibits DISCRIMINATION in programs or activities receiving federal financial assistance. It provides: "No otherwise qualified individual with handicaps in the United States . . . shall, solely by reason of her or his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." This provision marks the first time the disabled were viewed as a class of people, similar to a race or gender. The disabled used Section 504 to demand and enforce equal footing as a class under the law, one that could demand facilities to accommodate their disability.
Although this language offered some protection from educational discrimination for those with disabilities, Section 504 did not go far enough. It only applied in limited situations, where the program or building used federal financial aid in the form of grants. Those with disabilities still faced discrimination in the private sector, in private schools, and in those public facilities that did not use federal grant money. The disabled still faced a great many inaccessible schools, testing situations that did not offer alternatives for the deaf, the blind, or those with other types of disability, and other, similar barriers to equal education and access.
The Americans with Disabilities Act was passed on July 26, 1990, and signed into law by President George H. W. Bush. The intention of Americans with Disabilities Act was to fill the gaps left behind by Section 504. The ADA builds upon the legal language within Section 504, so that applied together, both laws would cover almost any situation, public or private, that the disabled might encounter.
The ADA bars employment and educational discrimination against "qualified individuals with disabilities." Title II of the Americans with Disabilities Act applies specifically to educational institutions, requiring them to make educational opportunities, extracurricular activities, and facilities open and accessible to all students. The ADA applies equally to public and private sector institutions, although the requirements for private schools and institutions are slightly less stringent.
Section 504 of the Rehabilitation Act of 1973 defines individuals with disabilities as those who have a physical or mental impairment which substantially limits one or more major life activities; has a record of such impairment; or is regarded as having such an impairment. This category includes physiological disorders such as hearing impairment, vision impairment, or speech impairments; neurological disorders such as muscular dystrophy or multiple sclerosis; psychological disorders such as mental retardation, mental illness, or learning disabilities. The legislative definition does not spell out specific illnesses or impairments because of the difficulty of ensuring an all-inclusive list.
The deciding factor in determining whether or not a person suffers from a disability under Section 504 is whether the impairment limits one or more major life activities, such as walking, performing manual tasks, seeing, hearing, speaking, breathing, learning and/or working. The Americans with Disabilities Act defines a disability as a "physical or mental impairment that substantially limits one or more major life activity; a record of such impairment; or being regarded as having such impairment." The Americans with Disabilities Act covers obvious impairments such as difficulty in seeing, hearing, or learning, as well as less obvious impairments such as alcoholism, epilepsy, paralysis, mental retardation, and contagious and noncontagious diseases, specifically Acquired Immune Deficiency Syndrome (AIDS).
The difference between the two laws, as they apply to educational institutions, is that Section 504 applies to the recipients of grant monies from the federal government, while Title II of the Americans with Disabilities Act applies only to public entities, with some applications to private sector entities. These entities include nursery, elementary, secondary, undergraduate, or postgraduate schools, or other places of education, day care centers, and gymnasiums or other places of exercise or recreation.
Accommodation of Disabilities
Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act cover students in virtually any public school district, college, or university because they receive some form of federal assistance. Some private schools, colleges, and universities also receive such assistance, and students are protected under Section 504, but Title II does not apply to them. Both laws apply to all programs of a school or college, not simply academics. These include extracurricular activities such as band, clubs, or academic teams, as well as athletics and any activity that might occur off campus.
Neither law requires that all buildings be made fully accessible to students or teachers with disabilities. Those buildings constructed after the Section 504 regulation was issued in 1977 must be fully accessible. For older buildings, the law requires that the program or activity be made accessible. Often, classes or extracurricular activities are moved to another, more accessible, room to accommodate any disabled person who attends. An interpreter for the hearingimpaired or other types of assistance can be supplied.
One aim of the Americans with Disabilities Act was to make educational institutions more accessible for the disabled. This aim covers "reasonable accommodations" such as the following:
- Modification of application and testing
- Allowing students to tape-record or videotape lectures and classes
- Modification of class schedules
- Extra time allotted between classes
- Specialized computer equipment
- Special education
Accommodation also includes physical changes to an educational institution's buildings, including the following:
- Installing accessible doorknobs and hardware
- Installing grab bars in bathrooms
- Increasing maneuverability in bathrooms for wheelchairs
- Installing sinks and hand dryers within reach
- Creating handicapped parking spaces
- Installing accessible water fountains
- Installing ramps
- Having curb cuts, sidewalks, and entrances that are accessible
- Installing elevators
- Widening door openings
Public accommodation is not required if a particular aid or service would result in either fundamental alteration of the services offered or the facility if the accommodation would impose an undue burden. (See Southeastern Community College v. Davis, 442
U. S. 397 (1979)). Under the U. S. Supreme Court's interpretation, Congress intended that undue burden and hardship shall be determined on a case-by-case basis.
Testing and examinations
Section 309 of the Americans with Disabilities Act fills the gap regarding testing and examination not defined by Section 504 of the Rehabilitation Act of 1973 or Title II of the Americans with Disabilities Act. Any educational facility that receives federal money or is a public facility because it is a function of the state or local government as defined under Title II of the ADA is required to make any examination accessible to persons with disabilities. This requirement includes physical access to the testing facility, as well as any modification of the way the test is administered to assist the disabled. Modifications may include offering extended time, written instructions, or the assistance of a reader.
Many licensing and testing authorities are not covered by Section 504 or Title II. In these cases, a provision in the ADA was included to assure that persons with disabilities are not prohibited from or disallowed in any educational, professional, or other
EXAMINATION opportunity because a test or course is conducted in an inaccessible location or is offered without the needed modifications to assist the disabled student. Modifications may include offering an examination with the assistance of a reader, in a braille or large print format, transcribers, or the proper computer equipment to help the disabled person.
Examiners may require proof of disability, but requests for documentation of the disability must be reasonable and must be limited to support for the modification or aid requested. The student or testing applicant may be required to bear the cost of providing such documentation for examination officials. Appropriate documentation would include:
- Letter from physician or psychiatrist or other qualified individual
- Evidence of prior diagnosis
- Evidence of prior accommodation
Hidden disabilities are considered to be any physical or mental impairments that are not readily apparent to others. They include such conditions as learning disabilities, allergies, diabetes, epilepsy, as well as chronic illnesses such as heart, kidney, or liver disease. There are roughly four million American students with disabilities, many with impairments that are not immediately known without medical or diagnostic testing.
Private and Religious Schools
The ADA covers private elementary and secondary schools as places of public accommodation, i.e. they must be physically accessible to those with disabilities. But these schools are not required to provide free appropriate education or develop an individualized educational program for students with disabilities. Any private school that receives federal grant monies or any type of federal assistance would then fall under the Department of Education's regulations regarding construction and alterations to the private school's structures and buildings, where it can be conveniently and economically incorporated.
Under Section 504, colleges and universities are not required to identify students with disabilities. They are required to inform all applicants of the availability of auxiliary aids, services, and academic adjustments. It is the student's responsibility to make his or her condition known and to seek out assistance.
Americans with Disabilities Handbook. Equal Opportunity Commission and U. S. Department of Justice. October 1991.
Auxiliary Aids and Services for Postecondary Students with Disabilities: Higher Education's Obligations Under Section 504 and Title II of the ADA. Office for Civil Rights, U. S. Department of Education. 1998.
The Civil Rights of Students with Hidden Disabilities
Under Section 504 of the Rehabilitation Act of 1973. Office for Civil Rights, U. S. Department of Education. 1995.
Clearinghouse for information about federal government resources, pamphlets, and information regarding disabilities, maintained by the Presidential Task Force on Employment of Adults with Disabilities.http://www.disAbility.gov.
Student Placement in Elementary and Secondary Schools and Section 504 and Title II of the ADA. Office for Civil Rights, U. S. Department of Education.1998.
American Council on Rural Special Education (ACRES)2323 Anderson Ave., Suite 226, Kansas State University
Manhattan, WA 66502
Phone: (785) 532-2737
Fax: (785) 532-7732
American Speech Language-Hearing Association (ASHA)1801 Rockville Pike
Phone: (301) 897-5700
Phone: (800) 638-8255
Children with Attention Deficit Disorders (CHADD)8181 Professional Place, Suite 201 Landover, MD 20785
Phone: (301) 306-7070
Fax: (301) 306-7090
Clearinghouse of Disability Information Office of Special Education and Rehabilitative Services U. S. Department of Education
Switzer Building Room 3132 330 C Street SW Washington, DC 20202
Phone: (202) 205-8241
Fax: (202) 401-2608
Dyslexia Research Institute, Inc.
5746 Centerville Road
Tallahassee, FL 32308
Phone: (850) 893-2216
Fax: (850) 893-2440
Learning Disabilities Association of America (LDA)
4156 Library Road
Pittsburgh, PA 15234
Phone: (412) 341-1515
Fax: (412) 341-8077
National Center for Learning Disabilities (NCLD)381 Park Avenue South, Suite 1401 New York City, NY 10016 Phone: (212) 545-7510
Fax: (212) 545-9665
Public Facility Accommodations (Encyclopedia of Everyday Law)
Many people think that the Americans with Disabilities Act (ADA) primarily covers workplace accommodations. The only public accommodations they associate with ADA are handicapped parking spaces and Braille numbers on elevator buttons. In fact, the ADA's public facilities rules, as outlined in Title III of the act, are far more comprehensive than that. All sorts of buildings and businesses fall under Title III: restaurants, schools, office buildings, banks, doctors' offices, and movie theaters, to name a few. Accommodation can include anything from adjusting store shelves to constructing special ramps and entryways.
Some people mistakenly believe that ADA requires businesses to make all sorts of prohibitively expensive changes or else face stiff penalties. The truth is that ADA is designed to benefit the disabled, not to punish business owners. The key to understanding ADA is knowing what is and is not required, as well as what constitutes an acceptable accommodation.
In years past, "disability" was not something people dealt with publicly; it was understood that those who were blind, deaf, paralyzed, or otherwise "handicapped" would not participate in ordinary life activities, such as school or work.
Attitudes changed slowly but steadily, and by the twentieth century such notable people as Helen Keller and Franklin D. Roosevelt helped break down stereotypes about disabilities. Accommodating the disabled was another matter. Only important public figures such as Roosevelt (who could not stand or walk unaided after his 1921 bout with polio) could expect that structural accommodations would be made for them, and even then those accommodations were limited in scope. There were simply some places that the disabled could not visit freely.
Architectural Barriers Act
Although most people think that ADA was the first federal law regulating public facilities, in fact it was an earlier law that set the stage. The Architectural Barriers Act (ABA) was passed in 1968, and it mandated that any buildings designed, constructed, altered, or leased with federal funding had to be accessible to the disabled. This included post offices, national parks, some schools, some public housing, and mass transit systems. Because it dealt only with federally funded structures, it was (and still is) less well known than ADA, but it was an important early step.
Rehabilitation Act of 1973
As important as ABA was, it was met with a certain degree of apathy that undermined its effectiveness. Congress, eager to improve ABA compliance and equally eager for the government to create new and more comprehensive design standards, passed the Rehabilitation Act in 1973. Perhaps the most important element of this law was Section 502, which established the Architectural and Transportation Barriers Compliance Board (later called simply the Access Board). Originally created to develop as well as enforce design requirements, its role later became more focused on ensuring compliance. Beginning in 1976, the Access Board started investigating ABA non-compliance complaints against a variety of public buildings. The law covers any facility that was designed, built, altered, or leased with federal funds after 1969.
Uniform Federal Accessibility Standard (UFAS)
The design requirements that are supposed to be followed under ABA are spelled out by the Uniform Federal Accessibility Standard (UFAS), which was first published in 1984. These guidelines served as a precursor of sorts to guidelines later introduced under ADA. Today, some government agencies require compliance with both the ADA guidelines and UFAS.
ADA and Title III
The Americans with Disabilities Act was signed into law on July 26, 1990. Title I of the law covers places of employment; Title II state and local governments. Title IV covers telecommunications for the deaf and hearing-impaired, and Title V covers miscellaneous items. The section of ADA that deals with public facilities, is Title III.
Public accommodations include any building or outdoor space through which any person can enter, with or without a fee. Essentially, that means all buildings except for "private" clubs (any club that requires members to vote to admit an individual) and religious facilities. Among the facilities covered as listed by ADA are the following:
- Lodgings (hotels, motels, inns)
- Establishments that serve food and drink (restaurants, bars, taverns)
- Establishments that offer entertainment (theaters, stadiums)
- Places where public gatherings may be held (auditoriums, convention halls)
- Sale or rental establishments (retail stores)
- Service establishments (medical offices, law offices, funeral parlors)
- Places of public display or collection (museums, galleries, public gardens)
- Social service centers (homeless shelters, day care centers)
- Recreation/exercise establishment (golf courses, gymnasiums)
It is important to understand not only which facilities are covered under ADA, but also who is considered disabled. Under ADA guidelines, anyone who possesses a physical or mental impairment that significantly limits at least one major life functionor example, the ability to feed oneself, the ability to walk, or the ability to breathe on one's own. Alcoholics and other substance abusers are also covered if they have been shown to have a history of such abuse.
A public accommodation is expected to follow three basic guidelines under Title III of ADA. First, it cannot deny goods or services to a disabled person covered under the legislation. Second, it cannot satisfy its commitment to the legislation by offering benefits that are separate or unequal. Finally, it must offer all services in as integrated a setting as possible.
This kind of wording frightens some owners of public facilities. Retail store owners, for example, sometimes fear that Title III compliance means having to make expensive structural changes to their stores or keep people on staff to accommodate all possible disabilities. Would a small company have to install an elevator in its building? Does a restaurant have to make Braille menus and sign-language interpreters available?
In fact, ADA's Title III guidelines do offer a certain degree of leeway for facilities, but that leeway is dependent on a number of factors including cost and a facility's special needs.
Under Title III, any new building first occupied after January 26, 1993 is required to meet full ADA standards (unless the building plans had been completed before January 26, 1992). The following are among the requirements that new buildings are expected to meet:
- Doorways must be wide enough to accommodate wheelchairs; doors must be easy to open
- Restrooms must be equipped with adequately wide stalls, grab bars, and sinks and towel dispensers easily accessible for someone in a wheelchair
- Pay phones must be provided at more than one height, and phones with amplifiers should also be available
- Adequate parking spaces should be set aside to accommodate disabled patrons
- Elevators must have Braille numbers and visual as well as audible operation signals
- Alarm systems must be audible and visible
Existing facilities that are being remodeled (and in some cases those that are not) must make sure that alterations are ADA-compliant, as long as such changes are deemed reasonable, or, in the words of the legislation, "readily achievable." An alteration is deemed readily achievable when it can be done relatively easily and without much expense. It might not be structurally or economically feasible for a public facility with no elevator to install one, for example, but it probably is feasible to install ramps, handrails, and grab bars. Shelving in stores, telephones mounted lower on the wall, soap dispensers in bathrooms, and brighter lights are all things that can be added with little difficulty or undue expense. In cases in which alterations are difficult or impossible, alternatives can be incorporated instead. Examples include providing taped lectures of inaccessible gallery exhibits or providing a water cooler or reachable paper cups instead of installing a new accessible drinking fountain
As for new buildings, the costs of incorporating ADA-compliant accessibility features has been estimated to be less than one percent of overall construction costs. Thus, it is unlikely that the owners of a building currently under construction would be able to make a case against accessibility. Nor should they want to; as more disabled people enter both the consumer market (as tourists, for example) and the workforce, it benefits building owners to make their structures ADA-compliant.
A special accommodation category exists for those with visual and hearing impairments. The "auxiliary accommodations" are designed to make it easier to communicate with people who have difficulty seeing or hearing. Among the accommodations ADA can recommend are the following:
- Interpreters who speak sign language
- Special listening devices and headsets
- Texts in large print and Braille, or recorded on tape
- TDD/TTY text telephones for those with hearing impairments
As with physical alterations, auxiliary accommodations are not designed to create an undue burden on the building owner. Nor are they meant to alter the nature of goods or services offered by the public facility in question. For example, a museum whose art works are too delicate to be handled may implement a "no touch" policy, even though it means that certain blind people may not be able to enjoy the exhibit fully.
Stores are not required to have signs or price tags in Braille, nor do they need to have a sign language interpreter on staff. As long as an employee can read price tags and similar information to blind shoppers, and as long as store employees can communicate with deaf customers by writing out notes, there is no requirement for businesses to incur the expense of extra assistance.
Actually, many auxiliary accommodations can be made quite inexpensively. Most ordinary computer programs can be set to display and print in large type, for example. TDD/TTY telephone units equipped with printers cost about $500, which most fair-sized businesses could afford with little difficulty.
There are a number of other accommodations that in general are cost-effective to implement. For example, restaurants that need to make more room for wheelchairs may be required to move their tables around; unless they had to remove a significant number of tables and thus lose business, this should not be a burden. (In fact, many restaurants add or remove tables for certain events as a matter of course.) Some stores may have to relocate display racks for the same reason. Outdoor cafes that crowd sidewalks may be required to reduce the number of tables or increase the space between them. Large plants, whether indoors or outdoors, may need to be moved to make room for disabled individuals.
Enforcing the Law
In the 25-year period from 1976 to 2001, the Access Board investigated more than 3,300 complaints against public facilities, including post offices, military facilities, veterans hospitals federal courthouses, and prisons. In general, the Board works with the facility to find ways to bring it into compliance. One example is the Holocaust Memorial Museum in Washington, D.C. A group of children with varying degrees of hearing impairment were touring the museum when the fire alarm went off. Because the students actually thought the alarms were part of the exhibit, and because they could not hear the evacuation notices, there was potential for serious consequences. A complaint was filed with the Access Board, which worked with the museum to install new alarms that offered a more distinct and distinguishable signal.
Another example is a homeless shelter in Phoenix, Arizona. Although rest rooms in the shelter had been renovated twice using federal funds, they were still not ADA compliant. The Access Board worked successfully with the shelter to address the issue and make the rest rooms compliant.
Those who feel that a public facility is in violation of Title III may file their complaints with the U.S. Department of Justice. In cases of repeat violations, the Department has authorization to bring lawsuits against offenders, although the more desired outcome would be correction of the problem with the help of groups such as the Access Board. The Department of Justice web site that handles ADA issues is http://www.usdoj.gov/crt/ada/adahom1.htm.
The ADA: A Review of Best Practices Jones. Timothy L.,
American Management Association, Periodicals Division, 1993.
Equality of Opportunity: The Making of ADA. Young,
Jonathon M., National Council on Disability, 1997. Jordan I. Kosberg, ed., Wright-PSG, 1983.
The New ADA: Compliance and Costs. Kearney, Deboral
S., R.S. Means, 1992.
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Washington, DC 20004 USA Phone: (202) 272-0080
Fax: (202) 272-0081
URL: http://www.access-board.gov Primary Contact: Pamela Y. Holmes, Chair
Council for Disability Rights
205 West Randolph Street, Suite 1645 Chicago, IL 60606 USA
Phone: (312) 444-9484
Fax: (312) 444-1977
URL: http://www.disabilityrights.org Primary Contact: Jo Holzer, Executive Director
U. S. Department of Justice, Civil Rights Division, Office of Disability Rights950 Pennsylvania Avenue NW Washington, DC 20530 USA Phone: (202) 307-2227
Fax: (202) 307-1198
URL: http://www.usdoj.gov/crt/drs/drshome.htm Primary Contact: John L. Wodatch, Chief
U. S. Equal Employment Opportunity Commission (EEOC)1801 L Street NW
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Fax: (202) 663-4494 (TTY)
Primary Contact: Cari M. Dominguez, Chair
Work Accommodations (Encyclopedia of Everyday Law)
In the United States, approximately 43 million people have physical or mental disabilities or impairments that substantially limit major life activities. In an effort to avoid DISCRIMINATION against disabled people in the workplace, Congress enacted in July of 1990 the Americans with Disabilities Act (ADA). One way that the ADA seeks to improve employment opportunities for disabled people is by requiring employers under certain circumstances to alter the workplace to accommodate disabilities. These alterations are known as workplace accommodations.
Just like individuals of different races, colors, religions, gender, or national origin, individuals with physical or mental disabilities historically have faced discrimination. Disabled people have been excluded from mainstream society, segregated, provided with inferior or unequal services, and denied benefits that non-disabled people enjoy. What is different about the discrimination of disabled people as compared to other types of discrimination is that there is often a rational basis for treating disabled people differently from able-bodied people. Whereas there is usually no rational basis for treating, for example, a woman from South Africa differently from a woman from the United States, there may be a rational basis for treating a woman who is blind differently from a woman with good vision. The visually impaired woman may require the use of Braille, for example.
Another difference in DISABILITY discrimination is its intent. Many types of discrimination, such as racial discrimination, are rooted in hostility or hatred toward people who are different. But discrimination against disabled individuals more often is rooted in ignorance or apathy. Some people view disabilities with pity or discomfort, leading to behavior that may patronize people with disabilities. Other people simply fail to consider or understand the needs of disabled people, leading to benign neglect or misguided efforts to assist.
The U. S. Constitution does little to protect those with mental or physical disabilities from discrimination. Courts historically have not applied the Constitution's EQUAL PROTECTION Clause to discrimination of DISABLED PERSONS with the same level of scrutiny as discrimination of such protected classes as race, religion, and gender. People with disabilities, therefore, had little or no recourse when their disabilities unfairly prevented them from getting suitable jobs. Only two-thirds of employable disabled persons in the United States were employed in the late 1980s, and many of those employed were not working to their full capacity to earn given their disabilities. By 1990, more than 8 million disabled individuals were unemployed and forced to live on welfare and other forms of government assistance. Congress began enacting federal laws in the 1960s designed to protect disabled people, but these laws did not outlaw disability discrimination by employers. Such protections did not enter the workplace until the 1990 passage of the ADA.
The ADA prohibits private and state and local government employers, as well as employment agencies and labor unions, from discriminating on the basis of disability. It does not apply to private employers with fewer than 15 employees. The ADA prohibits several specific forms of disability discrimination. One example of an ADA violation occurs when an employer fails to make reasonable accommodations to allow disabled workers to work.
The ADA requires employers to make reasonable accommodations to qualified persons with disabilities unless such accommodations would cause an undue hardship to the employer. A disabled person under the ADA is someone who is substantially limited in the ability to perform a major life activity or who has a record of such an impairment or who is regarded as having such an impairment. To be qualified as a disabled person under the ADA, an individual must show an ability to perform all of the essential job functions either with or without a reasonable accommodation. Courts look at mitigating measures in determining whether an individual is disabled. For example, persons who need eyeglasses may be substantially limited in the ability to read, which is a major life activity, unless they wear eyeglasses. Because eyeglasses mitigate their bad vision and allow them to read normally, they are not considered to disabled under the ADA.
There are three general types of reasonable accommodations. The first type modifies the job application process to enable qualified job applicants with a disability to be considered for the job they want. The second type modifies the work environment or the manner in which the job is performed to allow disabled individuals to perform the job's essential functions. The third type modifies the workplace to allow disabled employees equal benefits and privileges as similarly situated employees without disabilities.
More specific types of reasonable accommodations may include making an office wheelchair accessible; restructuring jobs; providing part-time or modified work schedules; modifying or purchasing special furniture or equipment; changing employment policies; providing readers or interpreters; and reassigning disabled individuals to vacant positions. An employer is not required to eliminate an essential job function or fundamental duty of the job to accommodate a disabled person. An employer is not required to lower production quotas or standards that apply to all employees, although an employer is required to provide reasonable accommodations to help a disabled individual meet production quotas or standards. An employer is not required to provide disabled employees with personal use items that are necessary both on and off the job, for example, hearing aids.
The ADA does not require that reasonable accommodations be made when the accommodations would cause employers an undue hardship. Undue hardship means significant difficulty or expense when compared with the employer's resources and circumstances. The employer's financial capabilities are one factor in defining undue hardship, but undue hardship also occurs when the reasonable accommodation would be unduly extensive or disruptive or would fundamentally alter the nature or operation of the business. Courts determine on a case-by-case basis whether a reasonable accommodation would be an undue hardship for the employer.
Individuals who want a reasonable accommodation must request it but need not mention the ADA or the phrase "reasonable accommodation." It is sufficient if employees simply ask for an accommodation for a medical reason. Once a request is made, employers are obligated to investigate the request and determine if the requesting employee is qualified as a disabled individual under the ADA. If that determination is positive, then the employer must begin an interactive process with that employee, determining that individual's needs and identifying the accommodation that should be made. Sometimes this is an easy process with both sides agreeing on the reasonable accommodation. Other times, the interactive process can be complicated and contentious.
Sometimes, employers do not know about or understand the disability enough to determine a reasonable accommodation. In these cases, employers are entitled to obtain documentation, such as medical records or a letter from a doctor, to learn about the disability, its functional limitations, and the sort of accommodation that needs to be made. Alternatively, employers may simply ask the requesting employee about the disability and limitations. Unless the disability is obvious, that employee must provide the employer with sufficient information about the disability to help the employer determine a reasonable accommodation.
As long as the reasonable accommodation is effective in allowing the disabled individuals to perform their job functions and receive the same benefits as other, non-disabled individuals, then employers have the right to choose among reasonable accommodation options. Employers may choose options that are cheaper or easier to provide, for example. If employers offer disabled employees reasonable accommodations that employees do not want, the employers may not force the employees to accept the accommodations. If, however, the employee's refusal of the reasonable accommodation results in the individual's inability to perform the essential functions of the job, the employee may be deemed unqualified for the job. The employer may then be justified in terminating the employee.
During the hiring process, employers are not permitted to ask whether job applicants require a reasonable accommodation unless an applicant's disability is obvious, such as an applicant who uses a wheelchair, or unless the applicant voluntarily informs the employer about the disability. If the employer offers the applicant a job, it is with the condition that the applicant is able to perform the essential job functions either with or without a reasonable accommodation. Once the applicant receives the job offer, the employer may inquire about the necessity of reasonable accommodations.
The ADA also mandates that employees with disabilities be permitted to enjoy the same benefits and privileges of employment as non-disabled employees enjoy. Therefore, employers must provide reasonable accommodations to allow the disabled worker to gain access to such privileges as workplace cafeterias or lounges, gyms or health clubs, training programs, credit unions, transportation, or any other perk offered to non-disabled employees. A blind employee, for example, would not be able to read employment related notices placed on bulletin boards. In that case, the employer would have to provide a reasonable accommodation, such as sending that employee telephone messages.
Types of Reasonable Accommodations
An employer may restructure or modify a job as a reasonable accommodation for an employee with a disability. Job restructuring may include reallocating job functions or trading certain job functions that are difficult or impossible for the disabled worker with other job functions of a non-disabled worker. A disabled secretary who cannot climb stairs, for example, may be able to fulfill the essential functions of the job but cannot easily retrieve files from the upstairs storage room. In this case, an appropriate accommodation would be to assign the disabled worker additional filing duties and require an able-bodied co-worker to actually retrieve the files.
A disabled worker may be entitled to a paid or unpaid leave of absence from the job as a reasonable accommodation for such reasons as the worker's need for surgery or other medical treatment, the worker's recovery from illness related to the disability, or the worker's education or training related to the disability. An employer does not have to pay the disabled worker during a disability-related leave of absence beyond the employer's own policy regarding sick pay or vacation pay. The employer is required to hold open the disabled worker's job during the leave of absence, but the employer may demonstrate that holding open the position for an extended period would constitute an undue hardship. In the event of undue hardship, the employer can fill the disabled worker's position with another employee but then must try to identify an equivalent position for the disabled worker when the leave of absence ends.
Unless doing so would cause an undue hardship to the employer, the employer must allow a disabled worker the option of a modified or part-time work schedule if required by the disability. This may be necessary for individuals who need medical treatment periodically. Another type of job modification involves workplace policies. An employer who prohibits workers from eating or drinking at their workstations may amend that policy for a worker with a disability that requires this worker to eat or drink at specific times of the day. An employer who requires employees to work at the employer's office rather than at home may alter the policy if a disabled worker can perform the essential job functions from home but cannot perform them at the office.
An employer may claim that undue hardship prevents the provision of reasonable accommodations, but undue hardship is not easy to prove. The employer must demonstrate that the specific reasonable accommodation being considered would cause significant difficulty or expense. The determination of undue hardship is made on a case-by-case basis, and courts consider such factors as the type and cost of the accommodation, the financial resources of the employer, the number of employees, and the overall impact of the accommodation on the employer's operation. An employer cannot claim undue hardship resulting from fears or prejudices about an individual's disability or fears that an accommodation would result in a morale problem with co-workers. An employer may, however, demonstrate undue hardship if an accommodation would unduly disrupt the work of other employees.
ADA Disability and Business Technical Assistance Centers USAToll-Free: 800-949-4232
Job Accommodation Network (JAN)
PO Box 6080
Morgantown, WV 26506-6080 USA Phone: 800-232-9675
U. S. Equal Employment Opportunity Commission
1801 L Street, NW
Washington, DC 20507 USA Phone: 800-669-3362