Americans with Disabilities Act
Intro to the ADA
The Americans with Disabilities Act (ADA), enacted in 1990 and amended in 2008, was a bipartisan effort designed by Congress to protect the rights of people with disabilities across the public and private sector. The ADA ensures that people with disabilities could have an equal chance to fully participate in the community.
The ADA has five titles that respectively address employment, state/local government services and programs, access to businesses, telecommunications access for those who are deaf, and miscellaneous provisions including protecting against retaliation, intimidation, coercion, threats, or interference with people who seek to exercise their rights, or who encourage or aid others to do so.
The ADA has significantly and positively affected the lives of people with disabilities. A study conducted by the National Council on Disability found that this impact occurred in as little as five years after the law was passed (NCD, 2005). The preliminary findings of NCD̥s ADA Impact study indicate that significant strides have been made in such areas as transportation and accessible public facilities, including restaurants, theaters, stores, and museums.
According to the EEOC, a reasonable accommodation is "any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities."
The EEOC defines three categories of accommodations.
- Modifications or adjustments to a job application process that enable a qualified applicant with a disability to be considered for a position they have applied to.
- Modifications or adjustments to the work environment, or the way that work is usually done that enable a qualified individual with a disability to perform the essential functions of the job.
- Modifications or adjustments that enable an employee with a disability to enjoy equal benefits and privileges of employment.
Under Title I of the ADA, employers must provide reasonable accommodation employees and applicants who are qualified with individuals with disabilities, unless doing so would cause an undue hardship. Employers are only required to accommodate known disabilities. This means that the person with the disability must disclose their disability to their employer and let them know that they have to do their work differently in order to complete the essential functions of their job. Initial requests for accommodation do not need to be in writing, and can be made using plain language. Usually, they take the form of "because of X (medical condition or disability), I̥m having trouble with Y (job duty).After this request is made, the employer must initiate the interactive process with the applicant or employee. While the employee should be consulted on an effective accommodation, the employer ultimately chooses what is put into place. The accommodation must be effective in supporting the employee to complete the essential functions of their job.
Reasonable accommodation comes in many forms. It might include increasing the accessibility of a facility, removing marginal job functions, introducing new equipment or adjusting existing equipment, changing the way that someone is trained or tested, allowing for leave, or providing aids (i.e. a service animal or car service) or services (i.e. interpreters or qualified readers) that allow the person with a disability to approach their work differently. There are several accommodations that are rarely found to be reasonable. These include elimination of essential functions, reducing uniformly applied production standards, providing personal use items (i.e. mobility device, eyeglasses, hearing aids), or change a person̥s manager (instead they can ask the manager to change how the interact with an individual to better support them.) An employer can always choose to offer any accommodation it wishes, including those that are not considered reasonable, but is under no obligation to do so.
ADA Amendments Act
On September 25, 2008, President George W. Bush signed the ADA Amendments Act into law. Supreme Court decisions since 1990 had narrowed the definition of disability under the ADA resulting in the erosion of protections for many people with disabilities. The ADAAA restores the original intent of the ADA and rejects strict interpretation of the definition of disability while stating clearly that the ADA is in place to provide broad coverage and protection to anyone who has, or is regarded as having, a disability.
The ADAAA did not change the basic definition of disability from the ADA, but made several important clarifications to the rules of construction; principles to help the public understand and interpret disability under the ADAAA. The rules address:
- The term "substantially limits" shall be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA. In keeping with Congress̥s direction that the primary focus of the ADA is on whether discrimination occurred, the determination of disability should not require extensive analysis. Each person's situation must be assessed on an individual basis consistent with the ADA;
- The term substantially limits' shall be interpreted consistently with the findings and purposes of the ADA Amendments Act of 2008. So for example, the term "substantially limits" requires a lower degree of functional limitation than the standard previously applied by the courts. An impairment does not need to prevent or severely or significantly restrict a major life activity to be considered "substantially limiting." Nonetheless, not every impairment will constitute a disability. Comparing an individual̥s performance of a major life activity to the performance of the same major life activity by most people in the general population usually will not require scientific, medical, or statistical evidence;
- An impairment that substantially limits one major life activity need not substantially limit other major life activities in order to be considered a substantially limiting impairment;
- An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active;
- The ameliorative effects of mitigating measures, such as medication or hearing aids (with the single exception of ordinary eyeglasses and contact lenses), shall not be considered in assessing whether an individual has a disability;
Furthermore, the ADAAA expands major life activities to include bodily functions including but not limited to functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.
Additional the ADAAA gives clarity to the "regarded as" clause of the definition of disability in order for individuals to more easily establish coverage under that prong. The emphasis in such cases should be on how a person has been treated because of an actual or perceived physical or mental impairment (that is not transitory lasting six months or less and minor), rather than on what a covered entity may have believed about the nature or severity of the person's impairment. Individuals can file discrimination complaints under "regarded as", but they are not entitled to either reasonable accommodations in employment under Title I or reasonable modifications under Titles II and III of the ADA.
Finally, the ADAAA required enforcement agencies to issue new regulations to reflect the changes to the ADA to help eliminate potential confusion.
Disclosing a disability
When a person with a disability tells their employer that they have a disability or medical condition, they are disclosing their disability. It is important to note that a person with a disability can disclose their disability at any point in the employment process. Importantly, people with disabilities are under no obligation to disclose their disability to an employer or prospective employer. The ADA specifically limits an employer̥s ability to ask questions that are likely to uncover information related to disability (or to make disability related inquiries) at three stages
- Pre-offer: No disability questions are permitted at this stage. Ask only questions you ask of all applicants. Focus on the person̥s qualifications and the ability to perform the essential functions of the job.
- Post-offer: According to the EEOC, "once a conditional job offer is made, the employer can ask disability-related questions and require medical examinations as long as this is done for all entering employees in that job category."
- During Employment: Any disability-related inquiries that are made after someone is employed must be "job-related and consistent with business necessity."
In some cases, when a person chooses to disclose, they may just be sharing information about themselves. Often, people choose not to disclose until they need to do something differently on the job. In order for a person with a disability to receive a reasonable accommodation, they must disclose their disability to an employer. Disclosure sometimes initiates the reasonable accommodation process by the employer or prospective employer as it lets the employer know the reason why a reasonable accommodation is necessary.
Disclosing a disability is a personal decision. This decision is informed both the environment established by the employer and the individuals level of comfort within the employer environment. Medical information should always be kept confidential.
The fight for the ADA
Following the Civil Rights movement, people with disabilities began to organize and advocate for their rights, forcing a paradigm shift that eventually lead to the passage of the ADA. First drafted by the National Council on Disability, the ADA was first introduced into Congress in 1988 by Senator Lowell Weicker (R-CT) and Representative Tony Coelho (D-CA). After two years of advocacy and negotiation, the bill Congress passed the bill with bipartisan support.
Below are a two of many key leaders of the disability rights movement who advocated for the ADA:
Pat Wright is a leading disability rights and co-founder of the Disability Rights Education and Defense Fund (DREDF). She fought for several pieces of disability rights legislation, leading grassroots lobbying and organizing campaigns. Often referred to as "the General" for her work in coordinating lobbying efforts to pass and enact the ADA, she̥s considered critical to the passage of the ADA.
Justin Dart was another leading disability rights activist, co-founder of the American Association of People with Disabilities, and often considered the "Godfather f the ADA." He fought hard for the passage of the ADA and called it "the world̥s first declaration of equality for people with disabilities by any nation."
Definition of disability under the ADA
The ADA, unlike some other disability related laws, does not define disability based on a medical diagnosis, but rather on a functional definition. The ADA defines a person with a disability as someone:
- With a physical or mental impairment that substantially limits one or more major life activities;
- Who is regarded as having such an impairment; or
- With a record of such an impairment.
Under the ADA Amendments Act of 2008 major life activities now also include the operation of major bodily functions, including functions of the immune system, special sense organs and skin, normal cell growth, digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions.
Titles of the ADA
Title I: Employment
Title I of the ADA applies to all employers with 15 or more employees. It states that employers cannot discriminate against job applicants or employees with disabilities in hiring, pay, promotion, leave, benefits, and all other employment activities. Title I also mandates that employers cannot ask about disability beyond voluntary self-identification forms and that they must provide reasonable accommodations, unless it imposes undue financial, staffing, or resource hardship.
The Equal Employment Opportunity Commission (EEOC) enforces Title I, with occasional overlap with the Department of Justice. Disability discrimination complaints must be filed with the EEOC within 180 days of the event.
Title II: State and Local Government Services
Title II requires that individuals with disabilities are not excluded from programs, services, employment, and activities provided by state and local government entities. It is designed to ensure equal opportunity, equal participation, and equal benefits for people with disabilities. Title II also forbids unnecessary inquiries into disability, surcharges associated with compliance with Title II, and eligibility criteria that screen out people with disability without legitimate safety reasons. Title II applies to agencies including public libraries, public schools, local and state courts, town halls, municipal recreation sites, public transportation, and public streets and sidewalks. It also applies to government contractors.
Under Title II, state and local governments must achieve program access through reasonable modification to ensure access for people with disabilities, unless doing so causes a fundamental alteration in the nature of a service or program or cause excessive financial and administrative burden. Importantly however, Title II entities do not have to make each facility accessible to individuals with disabilities as long as equivalent access to the program is ensured.
Title II also mandates that policies, practices, and procedures must provide reasonable modification to avoid discriminating against or excluding people with disabilities unless to do so would fundamentally alter its nature. This includes a requirement that all Title II covered agencies provide effective communication, such as auxiliary aids.
The US Department of Justice enforces Titles II and III of the ADA. Complaints can be filed by mail, fax, or email.
Title III: Places of Public Accommodation
Title III covers entities that are open to the public and affect commerce, including any person or entity that owns, leases (or leases to), or operates, a place of public accommodation. Examples of public entities include private schools and colleges, banks, restaurants, theaters, hotels, private transportation, supermarkets, museums, shopping malls, recreational facilities, sports arenas, and medical, legal and insurance offices.
Title III requires that these entities do not discriminate based on disability in providing goods and services, that they remove all structural and architectural barriers to accessibility if such removal is readily achievable, and that new construction and alterations of facilities must comply with the 2010 ADA Standards for Accessible Design. Title III defines "readily achievable" as "easily accomplishable without much difficulty or expense." It is an on-going obligation that must be continually re-evaluated to determine if barriers to access exist, and if feasible, those barriers should be corrected.
Like Title II, Title III forbids unnecessary inquiries into disability, surcharges associated with compliance with Title II, and eligibility criteria that screen out people with a disability without legitimate safety reasons. Title III also requires reasonable modifications to ensure access for people with disabilities, unless doing so causes a fundamental alteration in the nature of a service or program or cause excessive financial and administrative burden. Additionally, Title III also requires public accommodations provide auxiliary aids and services.
Because Title III covers private schools and universities, it includes regulations for exams and courses: covered entities must offer exams and courses in a location and manner that is accessible to individuals with disabilities or offer alternative accessible arrangements, and examinations should be administered so that the results accurately reflect the individual̥s aptitude or achievement level, not the impairment.
The US Department of Justice enforces Titles II and III of the ADA. Complaints can be filed by mail, fax, or email.
Title IV: Telecommunications
Specifically addressing the needs of people with hearing and speech disabilities, Title IV of the ADA requires telephone companies to establish telecommunications relay services (TRS). It also requires closed captioning of all federally funded public service announcements. The Federal Communications Commission enforces Title IV.
Title V: Miscellaneous Provisions
Title V includes various provisions that apply across the other titles. It protects against retaliation, intimidation, coercion, threats, or interference with people who seek to exercise their rights, or who encourage or aid others to do so. Title V also protects people without disabilities if they advocate or testify on behalf of individuals with disabilities.
Additionally, Title V mandates the following miscellaneous provisions:
- The Access Board, an independent federal agency that enforces the Architectural Barriers Act, must create accessibility standards
- Attorney fees may be rewarded to prevailing parties in lawsuits related to the ADA
- Federal agencies must provide technical assistance to those with rights or obligations under the ADA
- Specifically states that illegal drug use is not a disability
- Provides that state/local law that mandate equal or greater protection to individuals with disabilities are not superseded or limited by the ADA