How did the ADA make life better for Americans with disabilities? What are some challenges Americans with disabilities still face despite the ADA??
How did the ADA make life better for Americans with disabilities? What are some challenges Americans with disabilities still face despite the ADA?
Americans with Disabilities Act
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History of ADA Act of 1990 –
Section 504
- Rehabilitation Act of 1973 (29 USC 791) – called Section 504
Section 504 prohibited discrimination vs “handicapped” in
- a. any federal program or activity
- b. any program or activity receiving federal funds
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Section 504
Coverage
- a. “handicapped” individual
- b. otherwise qualified to participate
- c. excluded solely for reason of handicap
- d. program or employer RECEIVES FEDERAL ASSISTANCE
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Section 504
Definition of “handicapped”
- “a. a physical or mental impairment that substantially limits one or more of the major life activities of such individual
- b. a record of such impairment
- c. being regarded as having such an impairment”
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Congressional Purpose of ADA
- Congress was presented with information about people with disabilities:
- i. SSD & SSI & related programs cost tens of billions annually
- ii. 82% of individuals with disabilities say they would rather work
- iii. 43 million people meet the act's definition of disability
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Congressional Purpose ADA
"The purpose of the ADA … is to provide a clear and comprehensive national mandate to end discrimination against individuals with disabilities and to bring those individuals into the economic and social mainstream of American life."
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Coverage of ADA
Congress estimated 43 million persons have one or more physical or mental disabilities as defined in statute
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ADA Definition of Disability Continues Section 504
- ADA adopts same definition of disability as definition of handicap in Section 504 of Rehabilitation Act of 1973 and generally is not to be interpreted in any way to lessen the standards of Section 504.
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ADA Definition of Disability
- A: a physical or mental impairment
- that substantially limits one or more major life activities of such an individual; or
- B. a record of such an impairment or
e.g. person with history of physical or mental illness, even if impairment does not currently exist; e.g. person who suffered heart attack; former cancer patients; recovered alcoholics or drug addicts
- C. being regarded as having an impairment
e.g. parents or caretaker of child with AIDS or even a severely disfigured burn victim
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Others Protected by ADA
1. Retaliation prohibited against non-disabled persons who oppose unlawful discrimination against the disabled. (42 USC 12204 (a))
2. Also those who associate with or who provide care to those with disabilities are protected by ADA from discrimination:
It is unlawful for a covered entity to exclude or deny equal jobs or benefits to, or to otherwise discriminate against, a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a family, business, social or other relationships or association.
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ADA refused to exactly define physical or mental impairment
Physical or Mental Impairment are not exactly defined to avoid limiting definition and to allow room for future growth in recognition of disabilities
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Examples of Physical Impairments
- House and Senate reports gives nonexclusive lists of physical impairments that cover everything:
- physiological conditions or disorders,
- cosmetic disfigurement or
- anatomical loss covering of any of the body systems
e.g. covers cancer, diabetes, muscular dystrophy, epilepsy, cerebral palsy, paraplegics, but also covers asthma and HIV and AIDS
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Examples of Mental Impairments
- Reports cover any mental or psychological disorder
- such as intellectual disabilities, organic brain syndrome,
- emotional or mental illness
- and learning disabilities
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ADA Exclusions
Does cover substance abusers or recovering alcoholics but NOT those currently engaging in illegal drugs or suffering from active alcoholism
Also does NOT include: temporary, nonchronic ailments of short duration (e.g. loss of one arm is covered, broken arm is not)
Does NOT cover environmental, economic or cultural disadvantages nor age, nor being a homosexual, bisexual, compulsive gamblers nor having a prison record
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ADA & Employment – Title I
Title I of the ADA prohibits discrimination in all phases of employment
hiring, advancement, termination, compensation or other terms of employment
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Title I of ADA – disability definition
- i. with a disability, or
- ii. who has a record of a disability, or
- iii. is perceived as having a disability or
- iv. who is associated with someone who has a disability
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Title I ADA disability def (cont)
- PERSON MUST BE DISABLED PLUS:
- i. otherwise qualified
- ii. to perform the essential functions of the job
- iii. with or without reasonable accommodation (e.g. hearing impaired receptionist)
(This is similar to 42 usc 2000e: commonly called "Title VII" which prohibits discrimination based on race, gender, age)
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ADA is Equal Opportunity
- NOT AFFIRMATIVE ACTION;
- EQUAL OPPORTUNITY
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ADA Requirements for Employers
Must Provide or at least Investigate “Reasonable Accommodation” for:
- a qualified person with a disability
- who is able to perform the essential functions of the job
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Reasonable Accommodation by Employers
Statute itself lists several examples:
- 1. physical accessibility (internal and external) must be done
- 2. job restructuring may be called for or re-design of office procedures
- 3. flex time; shift adjustments
- 4. modifying equipment (hardware and software)
- 5. changing examination procedures
- 6. providing qualified readers, interpreters and attendants
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Cost of Accommodation?
- Not necessary if cost creates "undue financial hardship" on employer
- Recall that Congress decided this was in common good – thus costs passed on to all employers and in turn to customers
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What is “undue financial hardship?”
- case by case determination based on:
- nature and cost of accommodation
- financial resources of employer
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Employer Defenses to ADA Claim
- 1. Job relatedness and business necessities defense (42 USC 12113(a))
- 2. Religious Entity Defense (42 USC 12113(c)(1)
- 3. Undue Hardship Defense (29 CFR 1630.15(d))
- 4. Health and Safety Defense (42 USC 12113(b))
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Health and Safety Defense
- An employer may require that employees not pose a direct threat to the health or safety of other individuals in the work place.
- Reasonable accommodation is still required
- EEOC has identified four factors to evaluate the direct threat defense
- i. duration of the risk
- ii. nature and severity of the potential harm;
- iii. likelihood that potential harm will occur;
- iv. the imminence of the potential harm.
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Other Forms of ADA Employment Discrimination
- A. limiting segregating of classifying jobs or applicants by disability
- B. Cannot contractually discriminate
e.g. health care coverage
- C. Cannot make pre-employment tests a screening device for people with disabilities
- D. cannot make pre-employment medical tests condition of job offer unless essential part of the job
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Pre-employment Screening – 1
- The ADA requires that tests which screen out persons with disabilities be job related and consistent with business necessity.
- However, tests which measure aptitude, physical agility, intelligence and specific skills are not considered to be "medical examinations" under the ADA and are not subject to the additional special rules which govern medical examinations.
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Pre-Employment Screening – 2
- There Special ADA Rules for Medical Examinations
- MEDICAL EXAMINATIONS ARE PROHIBITED UNTIL AFTER EMPLOYERS HAVE MADE A JOB OFFER TO THE APPLICANT. There are no exceptions.
- Employment can be conditioned on the results of an applicants post-offer medical examination.
- NOTE: Employers who require medical examinations, must require medical examinations of all entering employees, or all entering employees in the same job category for a certain position. Cannot give an examination to some and not to others.
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Title II: State and Local Government
- “Similar to Section 504 of the Rehabilitation Act of 1973, no state or local government entity may discriminate on the basis of disability in its programs or services. In addition to that general prohibition, state and local government entities must assure that all of its programs and services, when viewed in their entirety, are accessible. Thus every program must be accessible, but not every facility must be accessible.”
Accessible Features
- Accessible features must be maintained in working order. All newly constructed or altered streets and walkways must have curb ramps regardless of the source of funding. The requirements apply not only to the state and local government entity, but also any private entity with which the government contracts to provide services.
TITLE III of ADA: PUBLIC ACCOMMODATIONS
Prohibits discrimination by those who own, lease, lease to, or operate places of public accommodations,"if the activities of such entities affect commerce.“ Heart of Atlanta Motel v United States, 379 US 241 (1964)
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Enforcement of Title III
The Department of Justice is responsible for oversight of this section.
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What Places Covered? All.
The Justice Department estimates over 5 million places constitute public accommodations. The following private entities are considered public accommodations: (42 USC 12181(7)
- a. all places of lodging
- b. all places serving food or drink
- c. all places of entertainment
- d. all retail establishments
- e. all service establishments
- f. all places of public transportation
- g. professional offices of health care providers or lawyers and hospitals
- h. etc and everything else
Even private homes can be public accommodations if it is used as a facility which would fall into the categories listed above
Exemptions are available for private clubs and religious entities
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Protected Persons
Law protects current
and potential customers
and clients with disabilities
who otherwise meet eligibility requirements.
E.g. a health spa which limits membership to 18 years or older could refuse membership to 17 year old with disability but not 19 year old.
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Obligations of Public Places – 3
- Auxiliary Aids and services 28 CFR 36.303
- Requires public accommodations provide auxiliary aids and services to the disabled to allow them to participate. Applies particularly to communication with disabled and includes:
- a. aids for hearing impaired like interpreters, amplifiers for telephones, TDD's, open and closed captioning
- b. aids for visually impaired like readers, taped texts, braille materials, large print
- c. use of the most advanced equipment is not required so long as effective communication is insured
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Cost of Auxiliary Aids Services
Not required if “undue burden” on public accommodation, which is determined by analyzing:
- i. nature and cost of action needed
- ii. overall financial resources of site
- iii. relationship of site with parent company
- iv. financial resources and size of parent company
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Obligations of Public Places – 4
Removal of Barriers:
- Requires the removal of architectural barriers or physical barriers of any kind when such removal is readily achievable, i.e. easily accomplishable and without much difficulty or expense
- Substantial detail in regulations, including examples of readily achievable, modest measures which should be taken:
- a. installing ramps, curb cuts, repositioning shelves, repositioning telephones, widening doors, eliminating turnstiles, rearranging toilets, removing high pile, low density carpet, installing vehicle hand controls
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Alternatives to Barrier Removal
- Where Barrier Removal is not readily achievable public accommodations must make its goods and services available through alternative methods e.g. provide a clerk to retrieve inaccessible goods
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Title IV: Telecommunications for the Deaf
- Federal Mandate for the TTY relay.
Title V: Miscellaneous Provisions
- “The ADA shall not be construed to apply a lesser standard than that already in existence under Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794 et seq.) or to invalidate any state or local laws (such as the Illinois Accessibility Code) which have stricter provisions.
- The ADA will not prohibit an insurance company from using sound actuarial data to administer risks, even if the effect is that people with disabilities will be charged more or denied coverage, but it must not be used as a subterfuge to deny coverage.
- The ADA shall not be construed to require a person to accept an accommodation.
- There shall be no state immunity from action under the ADA, but Congress remains exempt, although it must abide by certain internal requirements.
- There is a prohibition against retaliation for filing a charge or opposing a discriminatory practice; retaliation will constitute a separate offense.
- Attorney’s fees shall be awarded to the prevailing party.
- Various responsibilities for technical assistance and rule-making are outlined for the Architectural and Transportation Barriers Compliance Board, the Equal Employment Opportunity Commission, and the National Council on Disability.”
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