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Americans with Disabilities Act

Signed by President George H.W. BushJuly 26, 1990

• Wide ranging civil rights law• Went into effect 1992• Prohibits, under certain circumstances, discrimination based on disability

http://www.ada.gov

• Gives protection for Americans with disabilities

• Compared to Civil Rights Act of 1964 and how it made discrimination based on race, religion, sex, national origin and other characteristics illegal

What did it do?

What is a disability?

“A physical or mental impairment that substantially limits a major life activity.”

Determination of whether any particular condition is considered a disability is made on a case by case basis.

• Employer may not discriminate against a qualified individual with a disability

• Job application procedures, hiring, advancement, or discharge of employees, worker’s compensation, job training

• Employer would be an employment agency, labor organization, interstate commerce, and having 15 or more workers

Title I: Employment

• Limiting or classifying a job applicant or employee

• Denying employment opportunities to people who truly qualify

• Not making reasonable accommodations to the known physical or mental limitations of disabled employees

• Not advancing employees with disabilities in the business.

• Not providing needed accommodations in training

What would be discrimination?

• making existing facilities accessible;• job restructuring;• part-time or modified work schedules;• acquiring or modifying equipment;• changing tests, training materials, or policies;• providing qualified readers or interpreters; and• reassignment to a vacant position.What are accommodations?http://www.eeoc.gov/policy/docs/accommodation.html

Example A: An employee with a hearing disability must be able to contact the public by telephone. The employee proposes that he use a TTY to call a relay service operator who can then place the telephone call and relay the conversation between the parties. This is "reasonable" because a TTY is a common device used to facilitate communication between hearing and hearing-impaired individuals. Moreover, it would be effective in enabling the employee to perform his job

Examples

Example B: A cashier easily becomes fatigued because of lupus and, as a result, has difficulty making it through her shift. The employee requests a stool because sitting greatly reduces the fatigue. This accommodation is reasonable because it is a common-sense solution to remove a workplace barrier being required to stand when the job can be effectively performed sitting down. This "reasonable" accommodation is effective because it addresses the employee's fatigue and enables her to perform her job.

Example C: A cleaning company rotates its staff to different floors on a monthly basis. One crew member has a psychiatric disability. While his mental illness does not affect his ability to perform the various cleaning functions, it does make it difficult to adjust to alterations in his daily routine. The employee has had significant difficulty adjusting to the monthly changes in floor assignments. He asks for a reasonable accommodation and proposes three options: staying on one floor permanently, staying on one floor for two months and then rotating, or allowing a transition period to adjust to a change in floor assignments. These accommodations are reasonable because they appear to be feasible solutions to this employee's problems dealing with changes to his routine. They also appear to be effective because they would enable him to perform his cleaning duties.

An employer does not have to eliminate an essential function, i.e., a fundamental duty of the position. This is because a person with a disability who is unable to perform the essential functions, with or without reasonable accommodation is not a "qualified" individual with a disability within the meaning of the ADA.What is NOT considered a necessary accommodation?

Nor is an employer required to lower production standards -- whether qualitative or quantitative-- that are applied uniformly to employees with and without disabilities. 

Anything else?

An employer may have to provide reasonable accommodation to enable an employee with a disability to meet the production standard. While an employer is not required to eliminate an essential function or lower a production standard, it may do so if it wishes.

And finally…

An employer does not have to provide as reasonable accommodations personal use items needed in accomplishing daily activities both on and off the job. Thus, an employer is not required to provide an employee with a prosthetic limb, a wheelchair, eyeglasses, hearing aids, or similar devices if they are also needed off the job. Furthermore, an employer is not required to provide personal use amenities, such as a hot pot or refrigerator, if those items are not provided to employees without disabilities. However, items that might otherwise be considered personal may be required as reasonable accommodations where they are specifically designed or required to meet job-related rather than personal needs.

What about personal use items?

The only limitation on an employer's obligation to provide "reasonable accommodation" is that no such change or modification is required if it would cause "undue hardship" to the employer. "Undue hardship" means significant difficulty or expense and focuses on the resources and circumstances of the particular employer in relationship to the cost or difficulty of providing a specific accommodation. Undue hardship refers not only to financial difficulty, but to reasonable accommodations that are unduly extensive, substantial, or disruptive, or those that would fundamentally alter the nature or operation of the business. An employer must assess on a case-by-case basis whether a particular reasonable accommodation would cause undue hardship. The ADA's "undue hardship" standard is different from that applied by courts under Title VII of the Civil Rights Act of 1964 for religious accommodation.

Undue Hardship

No qualified individual with a disability shall be subjected to discrimination or excluded from the benefits of the services, programs, or activities of a “public entity.”

Title II: Public Service/Transportation

Any state or local government or any department or agency.

What is a “public entity?”

Lack of accessibility or certain services can be considered discrimination, regardless of who it actually affects.

Lack of wheelchair accessibility in passenger cars, or even the leasing of wheelchair inaccessible ones without a “good faith” attempt to lease wheelchair accessible ones is discrimination.

No individual may be discriminated against on the basis of disability with regards to the full and equal employment of the goods, services, facilities, or accommodations of any place of public accommodation by any person who owns, leases, or operates a place of public accommodation.

Title III: Public Accommodations

Most places of lodging (such as inns, hotels) recreation, transportation, education, and dining, along with stores, care providers, and places of public displays

What is “public accommodation?”

• Standard is “ready achievable”• Easily and inexpensively done

• Private Clubs• Religious Organizations• Historical Landmarks

Exceptions

• For those who are deaf, hard of hearing, or with speech impairments

• TTY: Teletypewriter machines• TDDs: Telecommunications Device for the

Deaf• Communications assistants translate

between the signed/typed words of a • consumer and the spoken • words of others

Telecommunications

It has made it not only possible, but very easy, for people who are deaf, hard of hearing, and/or speech impaired to call friends, co-workers, order a pizza, or make a doctor appointment.

Telecommunications

• Some claim that disabilities including clinical depression or minor neck/back pain are being accommodated when they should not be.

• Some feel ADA creates a class of “professional plaintiffs” who make a living out of collecting monetary damages from noncompliant businesses

• Even those who support the intent of the law worry that it might have unintended consequences

Criticism of ADA

Could the Act create additional legal risks for employers who then try to avoid hiring people with disabilities to avoid the risk?

Researchers claim that there has been a sharp drop in employment among the disabled after passage of the Act.

Some feel that the law is ineffectual- and that even stronger legislation is needed to achieve the Act’s intended goals.

Libertarians tend to believe accommodation laws restrict the free market.

• Effective Jan 1, 2009• Supported by more than 220 national organizations

• House vote 402 to 17• Senate unanimously passed itADA Amendment Act (ADAAA) Sept 25, 2008

• Definition of disability had been based on Rehabilitation Act of 1973

• Supreme Court in 1999 started to narrow the definition

Why was it amended?