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Americans with Disabilities Act (ADA)

Quick Tips #270

Introduction

The Americans with Disabilities Act (ADA) was signed by President George H.W. Bush in 1990. Since its enactment, the ADA has been compared to the scope and impact of the Occupational Safety and Health Act of 1970, and the Civil Rights Act of 1964. There are currently an estimated 45 million people in the United States that are, by ADA definition, disabled individuals. That means one in five people in the U.S. is affected by the provisions of the ADA. Since 1992, over 26,000 claims of discrimination have been filed with the Equal Employment Opportunity Commission (EEOC). In addition, it has been estimated that 18,000 complaints will be filed per year as a result of the ADA. Therefore, businesses must become aware of and understand their responsibilities as outlined by the ADA if they are to avoid unnecessary litigation.

The ADA is divided into five sections or Titles:

Title I—Employment (Ruled unconstitutional)

Title II
—Public Services

Title III
—Public Accommodations and Services Operated By Private Entities

Title IV
—Telecommunications

Title V
—Miscellaneous

These titles define the rights of disabled individuals and the responsibilities of employers, government agencies, telecommunications companies and privately owned public facilities. Not all of the titles will apply to your company or situation, however, it is likely that the Americans with Disabilities Act will affect your operations to some degree.

Understanding the following concepts will help you comprehend the various titles of the ADA.

What is considered a disability?

The ADA's definition is based upon the definition used by the Rehabilitation Act of 1973. The EEOC Technical Manual defines a disability as:

  1. A physical or mental impairment that greatly limits one or more major life activities. These major life activities include, but are not limited to, walking, hearing, seeing, speaking, learning, breathing, working, caring for oneself or performing manual tasks.
  2. A record of such an impairment. This part protects people with mental or physical illnesses which have been cured, controlled or are in remission. Examples include heart disease and cancer.
  3. A presumed impairment. This protects individuals that are perceived as having an impairment which is substantially limiting. Examples might include high blood pressure or a facial disfigurement.

The Americans with Disabilities Act excludes certain behaviors or disorders from being classified as disabilities. Examples include current illegal use of drugs, homosexuality, bisexuality, transvestitism, trans-sexualism, pedophilia, exhibitionism, voyeurism, gender identity disorder not resulting from a physical impairment, other sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from current illegal use of drugs.

Who is considered a qualified individual with a disability?

An individual is qualified if he or she has a disability and can meet the skills, experience, education and other job-related requirements of a position held or desired, and who may—with or without reasonable accommodation—perform the essential functions of a job held or desired.

What is a reasonable accommodation?

A reasonable accommodation is a modification or adjustment of a job to allow a qualified individual with a disability the same opportunity to perform the job as an individual without a disability. This may be accomplished by:

  1. Making a facility accessible.
  2. Changing jobs or work schedules.
  3. Modifying equipment, tools, policies or training procedures.
  4. Providing qualified readers or interpreters.

What is undue hardship?

Undue hardship shall always be determined on a case-by-case basis. When determining if a reasonable accommodation will cause undue hardship, the following should be considered:

Is the accommodation unduly costly, extensive, substantial, disruptive or would the accommodation fundamentally change the nature or operation of the business?

Title I—Employment

On February 21, 2001 The United States Supreme Court ruled Title I of the Americans with Disabilities Act was unconstitutional as it violated the Eleventh Amendment to the United States Constitution sovereign immunity insofar as it allowed states to be sued for money damages.

Title I does not allow discrimination against individuals with disabilities in a workplace with 15 or more employees (this includes part-time workers if they work each day for 20 or more weeks in the current or preceding calendar year). Employers are not allowed to ask about disabilities, require a medical history survey or conduct a medical examination until after an offer of employment has been made.

Title I also requires employers to provide reasonable accommodations to qualified individuals with disabilities so that they have the same employment opportunities as other non-disabled persons. This law does not require employers to hire disabled individuals who are not qualified, however, an employer may not use an individual's disability to disqualify or deny him or her any employment activities. The provisions of Title I cover all aspects of employment, including application, testing, hiring, assignment, evaluation, disciplinary action, training, promotion, medical examination, layoff/recall, termination, compensation, leave and benefits. It is considered to be discriminatory to use qualification standards, employment tests or other practices which may intentionally or unintentionally, screen out qualified individuals with a disability unless it is job related and essential to the job.

Employers are encouraged to develop written job descriptions which detail the essential functions of a particular job to help prevent ADA claims and investigations.

Job description and essential functions

A practical means of protecting a business is developing a written job description that identifies the "essential functions". Essential functions are defined as requirements of a job that are needed to perform that job at a satisfactory level. The employer should not add other functions which are not essential or require an unjustified level of performance. If an ADA discrimination claim is made, the job description becomes a key piece of evidence during the investigation. During an investigation, if non-essential functions or unjustified performance requirements were used to deny or disqualify a qualified individual with a disability, this may show bad faith on the part of the employer and possibly discrimination. It is very important that job descriptions be accurate and represent the true functions of a particular position in order to protect the employer.

Illegal drug use and alcohol

The provisions of the ADA allow employers to use drug testing to preserve a workplace that is free from illegal use of drugs. The ADA also has provisions that protect recovering illegal drug users and alcoholics. If a person is classified as an alcoholic or recovering illegal drug user, he or she is considered to be a disabled individual and possibly a qualified individual with a disability. Therefore, as an employer you are obligated not to discipline or discharge that person as long as he or she is a qualified disabled worker.

On the contrary, a person that uses illegal drugs is not considered a disabled individual and does not qualify for ADA protection. Illegal use of drugs may be defined as the use, possession or distribution of drugs listed under the Controlled Substance Act.

If the work performance of the alcoholic person or recovering illegal drug user begins to deteriorate to a level such that they are no longer a qualified individual, an employer may then take disciplinary actions. It should be noted that early intervention and treatment actions taken by employers on the part of employees with alcohol and illegal drug use problems are the most beneficial for all concerned parties.

Title II—Public Services

Title II covers all services, programs, activities and employment conducted by government agencies. The majority of Title II is directed at government agencies that provide public transportation. It requires that new buses, rail cars, taxis or other types of vehicles purchased or leased by government agencies must be accessible to disabled individuals.

Title III—Public Accommodation and Services Operated by Private Entities

Title III requires anyone who owns, leases or operates a public business to comply with the provisions of this title. This includes, but is not limited to, hotels, theaters, concert halls, grocery stores, shopping centers, gas stations, professional offices, zoos, golf courses, places of education and stations for public transportation. In addition, privately owned buses, vans and cars used for public transportation must also comply with these provisions. (Exception: taxi cabs. For further information contact the DOT.)

The provisions of Title III can be divided into three areas. The first provision requires public businesses to change all policies, procedures or practices which deny, exclude, segregate or treat persons with disabilities differently. The second provision requires that all services and accommodations offered by a business be the same for disabled and non-disabled patrons. The third provision requires public businesses to remove all architectural, communication and transportation barriers that may be easily removed. One thing that you may want to do is to survey your facility to ensure that it is physically barrier-free. For a complete listing of items that should be surveyed, refer to the EEOC Technical Manual.

Title IV—Telecommunications

Title IV requires phone companies to provide relay stations for hearing- or speech-impaired individuals to businesses or employers with voice-only phones. This does not require employers to buy Telecommunication Devices for the Deaf (TDD), unless it is a reasonable accommodation. Employers or businesses that receive TDD phone calls will need to train employees on how to handle such situations.

Title V—Miscellaneous

Title V has only two provisions that may impact an employer or public business. The first part encourages disputing parties to settle their differences outside of a courtroom. The second part allows state and local laws that are equal to or greater than the ADA to take precedence. This part of the title should encourage you to research state and local laws to find out which ones you are required to follow.

 

Sources

Architectural and Transportation Barrier Compliance Board (ATBCB)

Office of Technical Services
1111 18th Street NW Suite 500
Washington, DC 20036
(202) 653-7834

Equal Employment Opportunity Commission (EEOC)/Office of Communication

1801 L Street NW 9th floor
Washington, DC 20507
Information (202) 663-4900

Recorded Information about the ADA:
(800) 669-EEOC

Job Accommodation Network
WVU
P.O. Box 6080
Morgantown, WV 26506-6080
(800) ADA-WORK V/TTY
(800) 526-7234 V/TTY
jan@jan.icdi.wvu.edu
http://www.jan.wvu.edu

Mainstream Inc.
1030 15th Street NW
Suite 1010
Washington, DC 20005
(202) 898-1400

Public law 101-336, July 26 1990 104
STAT. 327 (ADA).

Schneid, Thomas D. The Americans With Disabilities Act: A Practical Guide for Managers, New York: Van Norstrand Reinhold, 1992.

Technical Assistance Manual for the Americans With Disabilities Act, EEOC, 1991.

What The Americans With Disabilities Act Requires Your Company To Do, Bureau of Business Practices, 1992.


(Rev. 6/2014)


Find even more information you can use to help make informed decisions about the regulatory issues you face in your workplace every day. View all Quick Tips Technical Resources at www.grainger.com/quicktips.

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Please Note:
The content in this newsletter is intended for general information purposes only. This publication is not a substitute for review of the applicable government regulations and standards, and should not be construed as legal advice or opinion. Readers with specific compliance questions should refer to the cited regulation or consult with an attorney.


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