Joanne R. Pompano
The purpose of the ADA is to provide “a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” The basic mandate of the ADA is that: “no qualified individual with a disability shall be excluded from participation in, or denied access to, programs or activities; denied benefits or services; or be subjected to discrimination by any public entity.”4 In an effort to ensure that this is accomplished the ADA provides “clear, strong, consistent, enforceable standards.”5
The ADA was derived from two previous laws, the Civil Right Act of 1964 and the Rehabilitation Act of 1973. Sec.504 of the Rehabilitation Act, however, prohibits discrimination on the basis of handicaps only where federal funds are received.
The ADA, on the other hand, applies to all aspects of society and attempts to ensure that discrimination of individuals with a disability will be addressed on a much wider basis. And for the first time, civil rights for disabled persons has become part of public policy.
Also, the ADA has provided a sense of empowerment for individuals with disabilities
and has energized them to fight for access and rights in the community.
The ADA does not supersede state and local laws that address discrimination on the basis of disability if they provide greater protection or broader coverage. Therefore, it is important for students to learn state, local and ADA coverage on any issue.
Who Is Covered By The ADA?
The ADA defines an individual as disabled if the person:
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1. has a physical or mental impairment that substantially limits one or more major life activities such as walking, hearing, seeing, speaking and breathing
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2. has a record of such impairment
such as recovered cancer patients or those who are disfigured to such an extent that they having a substantially limiting impairment.
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3. is regarded as having such impairment.6
Sections of the ADA:
There are five sections of the ADA:
Title I: Employment
Effective: July 26, 1992 (Employers with 25+ employees)
Revised: July 26, 1994 (Employers with 15+ employees)
Title I of the Americans with Disabilities Act of 1990 prohibits private employers, employment agencies, labor unions and state and local governments from discriminating against qualified individuals with disabilities in job applications, hiring, job training, advancement, firing, compensation, and privileges of employment. Federal employees, on the other hand, are protected from discrimination under section 501 of the Rehabilitation Act.
Title I states that “no covered entity shall discriminate against a qualified individual on the basis of a disability.”7 In fact, Title I prohibits discrimination in all aspects of employment including recruitment, advertising, the application process, job classifications, position description, testing, interviewing, hiring assignments, evaluation, discipline, medical examination, compensation, promotion, on-the-job training, leave, tenure, seniority, lines of progression, benefits (such as health insurance), social and recreational programs, layoff/recall, and termination.
Title I is enforced by the Equal Employment Opportunity Commission. However, employees with a complaint may also file a suit in federal court. The remedies provided include: an injunction, reinstatement and back pay. Also, when a case involves intentional discrimination the remedy may be a monetary award. This compensation, depending on the size of the employer, and can be up $300,000.8
Qualified Employee
Under the guidelines of the ADA, employees or applicants must be qualified for the positions despite their disability. “Qualified” individuals are defined in this act as persons who can perform the “essential functions of the job with or without reasonable accommodation” dispute their disability.9
Reasonable accommodations:
Employers are required to make a reasonable accommodation for qualified applicants or employees with a known disability, unless the employer can prove that providing the accommodation would result in an undue hardship.
Reasonable Accommodations are changes or modifications in the work environment or
adjustments in the way jobs are done that result in allowing the employee to perform the essential function of the job. The accommodations provided must be effective and must allow the applicant or employee an equal employment opportunity in the workplace.
Reasonable accommodations are determined on a case-by-case basis and depend on the needs of the individual The employer, however, has the right to choose the accommodation even if it is the least expensive accommodation as long as it provides an even playing field for the individual and is effective in allowing this person the opportunity to complete his job successfully
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Undue hardship:
The definition of an “undue hardship” under the ADA, is an action that causes a significant difficulty or expense to an employer when factors such as an employer’s size, financial resources, and the nature and structure of its operation are taken into consideration
Under certain conditions, proof of an undue hardship exempts an employer from the requirement of providing reasonable accommodations. Several factors are considered when making this determination such as the size of the employer, number of work sites involved or the number of employees.
Also, under this provision, employers are not required to lower their quality or production standards. In addition, the employer is not required to provide personal use aids such as glasses or hearing aids.11
Direct threat:
Disabled applicants or employees, who possess a “direct threat” to the health or safety of himself or others, are not protected by the ADA. Determined on a case-to-case basis, the use of competent medical or other evidence helps to determine whether this concept applies to an individual. Employers, however, are prevented from using stereotypes, fear or ignorance to use the defense of “direct threat.” 12
Employer Reasonability
Job applicants or employees must be qualified, that is, they must have appropriate education and experience and must able to perform the job. On the other hand, the employer must be certain that the employee is provided with an equal employment opportunity. For instance, if necessary, modifications to the job, work environment or equipment must be provided that will allow workers to perform the essential functions of the job and be able to perform the job satisfactorily. 13
Typical Accommodations
Reasonable accommodations are determined by the needs of the individual and are determined on a case-by-case basis. There are a wide variety of accommodations that can be provided to ensure the employee is able to perform his job in a satisfactory manner.
Determining and selecting accommodations is the responsibility of the employer. The only stipulation in selecting the modifications is that the accommodation must allow the employee to perform the essential functions of the job. In addition, if production standards are required for all other employees uniformly they also can be required of the disabled worker.
Ideally the disabled employee should be part of the process in determining if accommodations are necessary and it would be logical that this individual assist in selecting the modifications that they are most comfortable using.
Accommodations for Blind and Visually Impaired Individuals
Blind and visually impaired individuals are capable of working in many types of jobs depending on their interests, skills, and education. Matching their capabilities with the accommodations necessary to be successful is an important and often complex task for employees and employers.
There are variety of eye disorders and conditions resulting in a variety of degrees of blindness. The majority of visually impaired individuals have at least some useful vision. Therefore, there are a variety of adaptations that may aid these persons. The modifications required will depend on the needs of the individual. In some cases, the person may need many accommodations and in some cases no modifications will be necessary.
Typical job-related auxiliary aids, services or accommodations for the blind or visually impaired:
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1. tape recorder or audio translations of text or materials
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2. Braille, large print or audio transcripts of text
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3. tactile marking on equipment
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4. qualified readers or typists
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5. modifying wok schedules to allow use public transportation
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6. job sharing or job restructuring
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7. altering examinations, training materials, or policies
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8. supplying new devices or modifying existing equipment including screen readers, Braille embossers, portable electric note takers, scanners, magnifiers or high intensity lamps, and close-circuit televisions (CCTV) that enlarge text
Title II: State / Local Government Services and Public Transportation
Effective: January 26, 1992; effective dates for transportation provisions vary.
The Rehabilitation Act of 1973, Sec. 504, prohibits public entities that receive federal funding from discriminating on the basis of a disability. However, Title II, of the ADA, prohibits all public entities from discriminating against people with disabilities, whether or not they receive federal funds. Administered by the U.S. Department of Justice and the U.S. Department of Transportation, Title II provides protection against discrimination in all services, programs, and activities of state and local government entities. 14
Public transportation including intercity bus and rail transportation are covered by Title II. Airlines are not covered by Title II. 15 Instead airlines are covered by Sec.504 of the Rehabilitation Act.
Individuals can file complaints with the Department of Justice or Department of Transportation or eight other administrative agencies. It is also possible to file complaints directly in federal court. Violations of Title II are patterned after the obligations and remedies under Sec.504 of the Rehabilitation Act and may include damage for intentional discrimination and injunctive.
Title III: Public Accommodations
Effective: January 26, 1992
Public accommodations are defined to include almost any entity with which one does business or visits (such as retail stores, banks, stadiums, theaters, offices or hospitals.)
Title III guarantees that individuals cannot be discriminated against on the basis of their disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations in any place of public accommodation by any person who owns, leases, or operates a place of public accommodation. 16
Commercial Facilities
Commercial facilities are defined as mercantile establishments that affect commerce such as office buildings, warehouses, and factories. Title III applies to commercial facilities that are newly constructed or altered.
Under the ADA, a place of public accommodation must:
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l. prevent the screening of individuals with disabilities using eligibility criteria (Example: An establishment that wants someone to accompany an individual who is visually impaired even though they are capable of being on their own. This is illegal unless there is proof that the person with the visual impairment would be in jeopardy of direct threat of harm or injury.
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2. provide auxiliary aids or services
(Example
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failing to assist a person who is blind by verbalizing a menu if there is no large print or Braille translation available. Also, when complex and significant financial stakes or health-care decisions are at stake, individuals who are deaf-blind, must be provided with qualified interpreters.
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3. prevent exclusion, segregation, or different treatment (Example: isolating an individual to a certain seating section or preventing an individual from being part of an activity along with sighted peers.)
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4. remove architectural and structural communication barriers when it is “readily achievable” to remove such barriers. (Example, not posting Braille markings in elevators or on signs in existing facilities. However, there is an exemption if this would be overly difficult or expensive.)
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5. modify the practices or procedures that result in a denial of services. (Example, a blind person cannot be required to use a driver’s license as the sole means of identification.)
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6. provide alternative methods when barriers cannot be removed. (Example: provide delivery service to a wheelchair user when the store’s existing premises are not accessible.)17
Title IV: Telecommunications
Title IV ensures that interstate and intrastate telecommunications relay services are available to allow individuals with hearing or speech impairments access to reliable communication. This may include telecommunication relay services that assist hearing impaired, speech impaired or deaf-blind individuals.18
Title IV requires that telephone companies ensure that people with disabilities will have the ability to communicate by wire or radio. Title IV establishes guidelines and functional requirements for these services. These services must be available 24 hours on a daily basis. In addition, the rates for use cannot be greater than the rate paid for equivalent voice communication.
Also, carriers are required to provide Telecommunications Devices for the Deaf (TDD). This machine produces graphic communication of signals through wire or radio communication systems. The guideline prohibits operators from intentionally altering a relayed conversation, keeping record of conversations, or disclosing the content of conversations.
Title IV also covers television stations and provides close-captioning of verbal content for public service announcements that are produced or funded by or for the Federal Government.19
Title V: Miscellaneous provisions
Title V insures that any provisions of the ADA will not invalidate or limit the remedies, rights and procedures of any Federal law or law of any State or jurisdiction that provides greater or equal protection for the rights of disabilities individuals.
Title V also guarantees that there will not be restriction to insurers, hospitals or medical services, health maintenance organizations or agents or entities that administer benefit plans from underwriting risks, classifying risks, or administering such risks.
Most importantly it guarantees that individuals with a disability do not have to accept an accommodations, aid, services, opportunities or benefits which the individual chooses not accept.20