Americans with Americans with Disabilities ActDisabilities Act

Law and PovertyLaw and Poverty

History of ADA Act of History of ADA Act of 1990 –1990 –Section 504Section 504 Rehabilitation Act of 1973 (29 Rehabilitation Act of 1973 (29

USC 791) – called Section 504USC 791) – called Section 504

Section 504 prohibited Section 504 prohibited discrimination vs handicapped indiscrimination vs handicapped in– a. any federal program or activitya. any federal program or activity– b. any program or activity receiving b. any program or activity receiving

federal fundsfederal funds

Section 504 Section 504

Coverage Coverage – a. handicapped individuala. handicapped individual– b. otherwise qualified to participateb. otherwise qualified to participate– c. excluded solely for reason of c. excluded solely for reason of

handicaphandicap

– d. program or employer RECEIVES d. program or employer RECEIVES FEDERAL ASSISTANCEFEDERAL ASSISTANCE

Section 504Section 504

Definition of handicappedDefinition of handicapped– a. a physical or mental impairment a. a physical or mental impairment

that substantially limits one or more that substantially limits one or more of the major life activities of such of the major life activities of such individualindividual

– b. a record of such impairmentb. a record of such impairment– c. being regarded as having such an c. being regarded as having such an

impairmentimpairment

Section 504 to ADASection 504 to ADA

Limited coverage of Section 504 Limited coverage of Section 504 leads to ADAleads to ADA

Congressional Purpose Congressional Purpose of ADAof ADA Congress was presented with Congress was presented with

information about people with information about people with disabilities:disabilities:

i. SSD & SSI & related programs cost i. SSD & SSI & related programs cost tens of billions annuallytens of billions annually

ii. 82% of the disabled say they ii. 82% of the disabled say they would rather workwould rather work

iii. 43 million people meet the act's iii. 43 million people meet the act's definition of disabilitydefinition of disability

Congressional Purpose Congressional Purpose ADAADA

"The purpose of the ADA ... is to "The purpose of the ADA ... is to provide a clear and provide a clear and comprehensive national mandate comprehensive national mandate to end discrimination against to end discrimination against individuals with disabilities and to individuals with disabilities and to bring those individuals into the bring those individuals into the economic and social mainstream economic and social mainstream of American life." of American life."

Coverage of ADACoverage of ADA

Congress estimated 43 million Congress estimated 43 million persons have one or more persons have one or more physical or mental disabilities as physical or mental disabilities as defined in statutedefined in statute

ADA Definition of ADA Definition of Disability Continues Disability Continues Section 504Section 504

ADA adopts same definition of ADA adopts same definition of disability as definition of handicap disability as definition of handicap in Section 504 of Rehabilitation in Section 504 of Rehabilitation Act of 1973 and generally is not Act of 1973 and generally is not to be interpreted in any way to to be interpreted in any way to lessen the standards of Section lessen the standards of Section 504.504.

ADA Definition of ADA Definition of DisabilityDisability A: a physical or mental impairment A: a physical or mental impairment

– that substantially limits one or more major life that substantially limits one or more major life activities of such an individual; oractivities of such an individual; or

B. a record of such an impairment orB. a record of such an impairment ore.g. person with history of physical or e.g. person with history of physical or

mental illness, even if impairment does not mental illness, even if impairment does not currently exist; e.g. person who suffered currently exist; e.g. person who suffered heart attack; former cancer patients; heart attack; former cancer patients; recovered alcoholics or drug addictsrecovered alcoholics or drug addicts

C. being regarded as having an impairmentC. being regarded as having an impairmente.g. parents or caretaker of child with e.g. parents or caretaker of child with

AIDS or even a severely disfigured burn AIDS or even a severely disfigured burn victimvictim

Others Protected by Others Protected by ADA ADA 1. Retaliation prohibited against non-disabled 1. Retaliation prohibited against non-disabled

persons who oppose unlawful discrimination persons who oppose unlawful discrimination against the disabled. (42 USC 12204 (a))against the disabled. (42 USC 12204 (a))

2. Also those who associate with or who provide 2. Also those who associate with or who provide care to those with disabilities are protected by care to those with disabilities are protected by ADA from discrimination:ADA from discrimination:

It is unlawful for a covered entity to It is unlawful for a covered entity to exclude or deny equal jobs or benefits to, or to exclude or deny equal jobs or benefits to, or to otherwise discriminate against, a qualified otherwise discriminate against, a qualified individual because of the known disability of an individual because of the known disability of an individual with whom the qualified individual is individual with whom the qualified individual is known to have a family, business, social or other known to have a family, business, social or other relationships or association.relationships or association.

ADA refused to exactly ADA refused to exactly define physical or mental define physical or mental impairmentimpairment

Physical or Mental Physical or Mental Impairment are purposefully not Impairment are purposefully not exactly defined to avoid limiting exactly defined to avoid limiting definition and to allow room for definition and to allow room for future growth in recognition of future growth in recognition of disabilitiesdisabilities

Examples of Physical Examples of Physical ImpairmentsImpairments . House and Senate reports gives . House and Senate reports gives

nonexclusive lists of physical impairments nonexclusive lists of physical impairments that cover everything: that cover everything:

physiological conditions or disorders, physiological conditions or disorders, cosmetic disfigurement or cosmetic disfigurement or anatomical loss covering of any of the anatomical loss covering of any of the

body systemsbody systemse.g. covers cancer, diabetes, muscular e.g. covers cancer, diabetes, muscular dystrophy, epilepsy, cerebral palsy, dystrophy, epilepsy, cerebral palsy, paraplegics, but also covers asthma and paraplegics, but also covers asthma and HIV and AIDSHIV and AIDS

Examples of Mental Examples of Mental ImpairmentsImpairments Reports cover any mental Reports cover any mental or psychological disorder or psychological disorder such as mental retardation, such as mental retardation,

organic brain syndrome, organic brain syndrome, emotional or mental illness emotional or mental illness and learning disabilitiesand learning disabilities

ADA ExclusionsADA Exclusions

Does cover substance abusers or recovering Does cover substance abusers or recovering alcoholics but NOT those currently engaging in alcoholics but NOT those currently engaging in illegal drugs or suffering from active alcoholismillegal drugs or suffering from active alcoholism

Also does NOT include: temporary, nonchronic Also does NOT include: temporary, nonchronic ailments of short duration (e.g. loss of one arm ailments of short duration (e.g. loss of one arm is covered, broken arm is not)is covered, broken arm is not)

Does NOT cover environmental, economic or Does NOT cover environmental, economic or cultural disadvantages nor age, nor being a cultural disadvantages nor age, nor being a homosexual, bisexual, compulsive gamblers nor homosexual, bisexual, compulsive gamblers nor having a prison recordhaving a prison record

ADA & Employment – ADA & Employment – Title ITitle I

Title I of the ADA prohibits Title I of the ADA prohibits discrimination in all phases of discrimination in all phases of employment employment

hiring, advancement, termination, hiring, advancement, termination, compensation or other terms of compensation or other terms of employmentemployment

Title I of ADA – Title I of ADA – disability definition disability definition i. with a disability, or i. with a disability, or

ii. who has a record of a disability, orii. who has a record of a disability, or iii. is perceived as having a disability iii. is perceived as having a disability

oror iv. who is associated with someone iv. who is associated with someone

who has a disabilitywho has a disability

Title I ADA disability Title I ADA disability def (cont)def (cont) PERSON MUST BE DISABLED PLUS:PERSON MUST BE DISABLED PLUS:

i. otherwise qualifiedi. otherwise qualified

ii. to perform the essential functions of the jobii. to perform the essential functions of the job

iii. with or without reasonable accommodation iii. with or without reasonable accommodation (e.g. hearing impaired receptionist)(e.g. hearing impaired receptionist)

(This is similar to 42 usc 2000e: commonly (This is similar to 42 usc 2000e: commonly called "Title VII" which prohibits discrimination called "Title VII" which prohibits discrimination based on race, gender, age)based on race, gender, age)

ADA is Equal ADA is Equal OpportunityOpportunity

NOT AFFIRMATIVE ACTION; NOT AFFIRMATIVE ACTION;

EQUAL OPPORTUNITY EQUAL OPPORTUNITY

Lawyers should know the Lawyers should know the differencedifference

ADA Requirements for ADA Requirements for EmployersEmployers

Must Provide or at least Investigate Must Provide or at least Investigate “Reasonable Accommodation” for:“Reasonable Accommodation” for:

a qualified person with a disabilitya qualified person with a disability

who is able to perform the who is able to perform the essential functions of the jobessential functions of the job

Reasonable Reasonable Accommodation by Accommodation by EmployersEmployersStatute itself lists several examples:Statute itself lists several examples: 1. physical accessibility (internal and 1. physical accessibility (internal and

external) must be doneexternal) must be done 2. job restructuring may be called for or re-2. job restructuring may be called for or re-

design of office proceduresdesign of office procedures 3. flex time; shift adjustments3. flex time; shift adjustments 4. modifying equipment (hardware and 4. modifying equipment (hardware and

software)software) 5. changing examination procedures5. changing examination procedures 6. providing qualified readers, interpreters 6. providing qualified readers, interpreters

and attendantsand attendants

Cost of Cost of Accommodation?Accommodation? Not necessary if cost creates Not necessary if cost creates

"undue financial hardship" on "undue financial hardship" on employeremployer

Recall that Congress decided this Recall that Congress decided this was in common good – thus costs was in common good – thus costs passed on to all employers and in passed on to all employers and in turn to customersturn to customers

What is “undue What is “undue financial hardship?”financial hardship?” case by case determination based case by case determination based

on:on:

nature and cost of nature and cost of accommodationaccommodation

financial resources of employerfinancial resources of employer

Employer Defenses to Employer Defenses to ADA ClaimADA Claim 1. Job relatedness and business 1. Job relatedness and business

necessities defense (42 USC necessities defense (42 USC 12113(a))12113(a))

2. Religious Entity Defense (42 USC 2. Religious Entity Defense (42 USC 12113(c)(1)12113(c)(1)

3. Undue Hardship Defense (29 CFR 3. Undue Hardship Defense (29 CFR 1630.15(d))1630.15(d))

4. Health and Safety Defense (42 USC 4. Health and Safety Defense (42 USC 12113(b))12113(b))

Job relatedness and Job relatedness and business necessities business necessities defense defense a. neutral qualification standardsa. neutral qualification standards

b. essential qualifications of jobb. essential qualifications of job

c. REMEMBER the ADA mandates c. REMEMBER the ADA mandates employers have a duty to attempt or employers have a duty to attempt or at least investigate the availability at least investigate the availability of reasonable accommodations of reasonable accommodations

Religious Entity Religious Entity Defense Defense religious entity may give preference religious entity may give preference

in employment to individuals of their in employment to individuals of their religion to perform work connected religion to perform work connected with the activities of their religionwith the activities of their religion

religious employers may require religious employers may require employees conform to tenants of employees conform to tenants of their religiontheir religion

Undue Hardship Undue Hardship Defense Defense A defense to refusal to make reasonable A defense to refusal to make reasonable

accommodation is that it would have accommodation is that it would have been an undue hardship on the employerbeen an undue hardship on the employer

However, employer cannot rely on such However, employer cannot rely on such an assertion. it must produce evidence an assertion. it must produce evidence and demonstrate undue hardshipand demonstrate undue hardship

Courts are directed to considerCourts are directed to consider– i. nature and cost of accommodationi. nature and cost of accommodation– ii. overall financial resources of employerii. overall financial resources of employer– iii. type of employer and type of facilityiii. type of employer and type of facility

Health and Safety Health and Safety Defense Defense An employer may require that employees An employer may require that employees

not pose a direct threat to the health or not pose a direct threat to the health or safety of other individuals in the work place.safety of other individuals in the work place.

Reasonable accommodation is still requiredReasonable accommodation is still required EEOC has identified four factors to evaluate EEOC has identified four factors to evaluate

the direct threat defensethe direct threat defense– i. duration of the riski. duration of the risk– ii. nature and severity of the potential harm;ii. nature and severity of the potential harm;– iii. likelihood that potential harm will occur;iii. likelihood that potential harm will occur;– iv. the imminence of the potential harm.iv. the imminence of the potential harm.

Other Forms of ADA Other Forms of ADA Employment Employment DiscriminationDiscrimination A. limiting segregating of classifying jobs or A. limiting segregating of classifying jobs or

applicants by disabilityapplicants by disability B. Cannot contractually discriminateB. Cannot contractually discriminate

e.g. health care coveragee.g. health care coverage C. Cannot make pre-employment tests a C. Cannot make pre-employment tests a

screening device for people with disabilitiesscreening device for people with disabilities D. cannot make pre-employment medical D. cannot make pre-employment medical

tests condition of job offer unless essential tests condition of job offer unless essential part of the job part of the job

Pre-employment Pre-employment Screening - 1Screening - 1 The ADA requires that tests which screen out The ADA requires that tests which screen out

persons with disabilities be job related and  persons with disabilities be job related and  consistent with business necessity. consistent with business necessity.

However, tests which measure aptitude, physical However, tests which measure aptitude, physical agility, intelligence and specific skills are not agility, intelligence and specific skills are not considered to be "medical examinations" under considered to be "medical examinations" under the ADA and are not subject to the additional the ADA and are not subject to the additional special rules which govern medical examinations. special rules which govern medical examinations.

Make sure that any tests you do use are designed Make sure that any tests you do use are designed to test the essential functions of the job, and that to test the essential functions of the job, and that they are accurate predictors of successful they are accurate predictors of successful performance on the job.  If the tests you use performance on the job.  If the tests you use screen out persons with disabilities, they must be screen out persons with disabilities, they must be job related and consistent with business job related and consistent with business necessity. necessity.

Pre-Employment Pre-Employment Screening - 2Screening - 2 There Special ADA Rules for Medical There Special ADA Rules for Medical

ExaminationsExaminations

MEDICAL EXAMINATIONS ARE PROHIBITED UNTIL MEDICAL EXAMINATIONS ARE PROHIBITED UNTIL AFTER EMPLOYERS HAVEAFTER EMPLOYERS HAVE MADE A JOB OFFER TO MADE A JOB OFFER TO THE APPLICANT. THE APPLICANT.  There are no exceptions. There are no exceptions.

Employment can be conditioned on the results of an Employment can be conditioned on the results of an applicants post-offer medical examination. applicants post-offer medical examination.

NOTE:NOTE: Employers who require medical examinations, Employers who require medical examinations, must require medical examinations of all entering must require medical examinations of all entering employees, or all entering employees in the same job employees, or all entering employees in the same job category for a certain position. Cannot give an category for a certain position. Cannot give an examination to some and not to others. examination to some and not to others.

Title I - RemediesTitle I - Remedies

Enforcement follows Title VII - Civil Enforcement follows Title VII - Civil Rights Act of 1991Rights Act of 1991

First investigated by EEOCFirst investigated by EEOC Jury trialJury trial Compensatory damages and Compensatory damages and

punitive damages, with some limits punitive damages, with some limits depending on size of employerdepending on size of employer

Attorney fees, costs and expert fees Attorney fees, costs and expert fees

TITLE III of ADA: TITLE III of ADA: PUBLIC PUBLIC ACCOMMODATIONS ACCOMMODATIONS

Prohibits discrimination by those Prohibits discrimination by those who own, lease, lease to, or operate who own, lease, lease to, or operate places of public accommodations,"if places of public accommodations,"if the activities of such entities affect the activities of such entities affect commerce.“ Heart of Atlanta Motel commerce.“ Heart of Atlanta Motel v United States, 379 US 241 (1964)v United States, 379 US 241 (1964)

Enforcement of Title IIIEnforcement of Title III

The Department of Justice is The Department of Justice is responsible for oversight of this responsible for oversight of this section. It has promulgated rules section. It has promulgated rules and regs which can be found at and regs which can be found at 28 CFR 3628 CFR 36

What Places Covered? What Places Covered? All. All.The Justice Department estimates over 5 million places The Justice Department estimates over 5 million places

constitute public accommodations. The following private constitute public accommodations. The following private entities are considered public accommodations: (42 USC entities are considered public accommodations: (42 USC 12181(7)12181(7)

a. all places of lodginga. all places of lodging b. all places serving food or drinkb. all places serving food or drink c. all places of entertainmentc. all places of entertainment d. all retail establishmentsd. all retail establishments e. all service establishmentse. all service establishments f. all places of public transportationf. all places of public transportation g. professional offices of health care providers or lawyers and g. professional offices of health care providers or lawyers and

hospitalshospitals h. etc and everything elseh. etc and everything elseEven private homes can be public accommodations if it is used Even private homes can be public accommodations if it is used

as a facility which would fall into the categories listed aboveas a facility which would fall into the categories listed aboveExemptions are available for private clubs and religious entitiesExemptions are available for private clubs and religious entities

Protected PersonsProtected Persons

Law protects current Law protects current

and potential customers and potential customers

and clients with disabilities and clients with disabilities

who otherwise meet eligibility who otherwise meet eligibility requirements. requirements.

E.g. a health spa which limits membership to 18 years or older E.g. a health spa which limits membership to 18 years or older could refuse membership to 17 year old with disability but not could refuse membership to 17 year old with disability but not 19 year old.19 year old.

Prohibited PracticesProhibited Practices

Denial of Participation Denial of Participation Unequal benefit Unequal benefit Segregated Setting Segregated Setting Retaliation or Coercion Retaliation or Coercion Discrimination against AssociatesDiscrimination against Associates Maintenance of Accessible Features Maintenance of Accessible Features Insurance Coverage not a DefenseInsurance Coverage not a Defense

Obligations of Public Obligations of Public Places - 1Places - 1 Cannot use eligibility criteria which Cannot use eligibility criteria which

screen out or tend to screen out screen out or tend to screen out individuals with disabilities unless individuals with disabilities unless based on actual safety risksbased on actual safety risks

CANNOT SET DISCRIMINATORY CANNOT SET DISCRIMINATORY CRITERIA:CRITERIA:

e.g. cannot require drivers license to e.g. cannot require drivers license to cash checks, but can require cash checks, but can require appropriate idappropriate id

Obligations of Public Obligations of Public Places - 2Places - 2 Modifications in Policies, Practices Modifications in Policies, Practices

and Procedures 28 CFR 36.302and Procedures 28 CFR 36.302 Requires public accommodations Requires public accommodations

modify their policies, practices, or modify their policies, practices, or procedures to permit the use of procedures to permit the use of its services by individuals with its services by individuals with disabilitiesdisabilities

Obligations of Public Obligations of Public Places - 3Places - 3 Auxiliary Aids and services 28 CFR 36.303Auxiliary Aids and services 28 CFR 36.303 Requires public accommodations provide Requires public accommodations provide

auxiliary aids and services to the disabled auxiliary aids and services to the disabled to allow them to participate. Applies to allow them to participate. Applies particularly to communication with disabled particularly to communication with disabled and includes:and includes:– a. aids for hearing impaired like interpreters, a. aids for hearing impaired like interpreters,

amplifiers for telephones, TDD's, open and amplifiers for telephones, TDD's, open and closed captioningclosed captioning

– b. aids for visually impaired like readers, taped b. aids for visually impaired like readers, taped texts, braille materials, large printtexts, braille materials, large print

– c. use of the most advanced equipment is not c. use of the most advanced equipment is not required so long as effective communication is required so long as effective communication is insuredinsured

Cost of Auxiliary Aids Cost of Auxiliary Aids ServicesServicesNot required if “undue burden” on public Not required if “undue burden” on public

accommodation, which is determined by accommodation, which is determined by analyzing:analyzing:

i. nature and cost of action neededi. nature and cost of action needed ii. overall financial resources of siteii. overall financial resources of site iii. relationship of site with parent iii. relationship of site with parent

companycompany iv. financial resources and size of parent iv. financial resources and size of parent

company company

Obligations of Public Obligations of Public Places - 4Places - 4Removal of Barriers:Removal of Barriers: Requires the removal of architectural barriers or Requires the removal of architectural barriers or

physical barriers of any kind when such removal physical barriers of any kind when such removal is readily achievable, i.e. easily accomplishable is readily achievable, i.e. easily accomplishable and without much difficulty or expenseand without much difficulty or expense

Substantial detail in regulations, including Substantial detail in regulations, including examples of readily achievable, modest measures examples of readily achievable, modest measures which should be taken:which should be taken:

a. installing ramps, curb cuts, repositioning a. installing ramps, curb cuts, repositioning shelves, repositioning telephones, widening shelves, repositioning telephones, widening doors, eliminating turnstiles, rearranging toilets, doors, eliminating turnstiles, rearranging toilets, removing high pile, low density carpet, installing removing high pile, low density carpet, installing vehicle hand controlsvehicle hand controls

Alternatives to Barrier Removal Alternatives to Barrier Removal

Where Barrier Removal is not Where Barrier Removal is not readily achievable public readily achievable public accommodations must make its accommodations must make its goods and services available goods and services available through alternative methods e.g. through alternative methods e.g. provide a clerk to retrieve provide a clerk to retrieve inaccessible goodsinaccessible goods

Title III - RemediesTitle III - Remedies

Actions may be brought for injunctive Actions may be brought for injunctive relief by individualsrelief by individuals

Actions may be brought for damages by Actions may be brought for damages by the Attorney Generalthe Attorney General

Attorney General may also seek civil Attorney General may also seek civil fines of up to $50,000 for first violation fines of up to $50,000 for first violation and $100,000 for subsequent violationsand $100,000 for subsequent violations