The following is from The Disability Law Handbook Published by the Independent Living Research Utilization. To see the Handbook on line go to www.SouthweatADA.org. They also have a podcast available in English, Spanish, and American Sign Language,at www.DisabilityLawLowdown.com.
Because of the size it had to be put into 2 posts.

The Americans with Disabilities Act: An Overview

When did the ADA become a law?

The Americans with Disabilities Act was signed into law on July 26, 1990. Some parts of the ADA didn’t go into effect until after that date, to give entities time to comply with the law, but all of those deadlines have passed.

What kind of law is the ADA?

The ADA is a comprehensive civil rights law. It prohibits discrimination on the basis of disability in employment, state and local government programs, public accommodations, commercial facilities, transportation, and telecommunications.

What is the definition of disability?

It is important to remember that “disability” is a legal term, rather than a medical one. Because it has a legal definition, that definition is different in different laws.

The ADA defines a person with a disability as a person who has a physical or mental impairment that substantially limits one or more major life activities. This includes people who have a record of an impairment, even if they do not currently have a disability. It also includes individuals who do not have a disability, but are regarded as having a disability. The ADA also makes it unlawful to discriminate against a person based on that person’s association with a person with a disability.

What do you mean by “association with a person with a disability?”

For example, if I do not have a disability, but I work in an HIV Clinic, it would not be legal for someone to discriminate against me based on the fact that I work with, or “associate” with, people who have HIV.

What are major life activities?

Major life activities are those functions that are important to most people’s daily lives. Examples of major life activities are breathing, walking, talking, hearing, seeing, sleeping, caring for one’s self, performing manual tasks, and working.

What does a “record of” an impairment mean?

“Record of” means that the person has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities, even though the person does not currently have a disability.

Can you give me an example of someone who has a “record of” an impairment without having a disability?

Sure. A man, who is in line for a promotion, has a history of cancer treatment, although he is now free of cancer. He is not given the promotion because his bosses are worried that, if his cancer returns, he won’t be able to do the job. He does not, at this point, meet the first part of the definition of disability because he does not have a physical or mental impairment that substantially limits one or more major life activities. However, based on his “record of” an impairment, he is being discriminated against.

What does “regarded as” having an impairment mean?

“Regarded as” means that the person either:

• Has an impairment that does not substantially limit a major life activity;
• Has an impairment that substantially limits a major life activity only as a result of the attitudes of others toward them; or
• Does not have any impairment, but is treated by an entity as having an impairment.

Can you give me an example of someone who is “regarded as” having an impairment, but doesn’t have a disability?

Yes. A woman applies for a job as a customer service representative at a department store. Her face is badly scarred from an automobile accident. The interviewer doesn’t want to give her the job, in spite of her skills and experience, because he thinks customers will be uncomfortable looking at her. She is not substantially limited in any major life activity, but the interviewer is “regarding her as” if she has a disability.

Are all people who have disabilities covered by the ADA?

I’ll give you the “lawyer answer” – it depends. All people who meet the ADA definition of disability are covered by the ADA in general, but they still may not have rights under particular sections of the ADA. For example, there is a section of the ADA that deals only with employment discrimination. If a person with a disability is not employed and is not seeking employment, then that person would not necessarily be covered by that part of the ADA, although the person would be covered by other parts of the ADA.

Are psychiatric disabilities covered, too?

Yes, the ADA definition of disability includes mental, as well as physical, impairments.

How many people in the United States have a disability?

According to the Survey of Income and Program Participation (SIPP) data, approximately 54 million Americans have a disability.

What kinds of things does the ADA cover?

The ADA is divided into five sections called “titles.” Each title covers a different area. Title I covers employment. Title II covers state and local government programs. Title III covers places of public accommodation. Title IV covers telecommunications. Title V has several miscellaneous provisions that cover things like retaliation and attorney fees.

I heard there is a new ADA. Is this book about the new ADA or the old ADA?

Actually, what you might have heard called the “new ADA” is really called The ADA Amendments Act – or the ADAAA. You have to have a pretty good understanding of the ADA to understand the details of why we needed an amendments act for it, but without going into a lot of detail, it can be summed up fairly simply. After the ADA was passed in 1990, cases started being filed and ending up in courts. Some were appealed all the way to the U.S. Supreme Court, and the ADA began to change. Rulings by the Supreme Court, as well as lower courts, began to narrow the definition of disability. After its first dozen years, the definition of disability had become the focus of most disputes. Congress never intended for it to be that way. The focus of the ADA was supposed to be on access and accommodation, not on whether the person really had a disability. Congress had not foreseen the ways in which the courts would narrowly interpret, and ultimately change, the definition. So on January 1, 2009, the ADAAA became effective. It essentially overturned those Supreme Court cases that narrowed the definition of disability and it made clear that the definition must be “construed in favor of broad coverage of individuals” with disabilities. So rather than this being a “new ADA,” it really is just going back to the way Congress meant the ADA to be when it was first written and passed back in 1990.

This book has a lot of information, but what if I want more information about the ADA?

There is a Resource Section in the back of the book. You can always call your regional Disability and Business Technical Assistance Center at 1.800.949.4232 with questions or to request in-person training. You can listen to our archived and new webcasts by visiting www.southwestADA.org and clicking on the webcast link. If you enjoy podcasts, you can download The Disability Law Lowdown podcast at www.disabilitylawlowdown.com.

Employment and the ADA

As long as I meet the ADA definition of disability, am I covered by Title I?

Not necessarily. Because Title I is about employment, a person must meet the definition of disability, and must also be a “qualified individual.” That means that you must have the skill, experience, and education that the job requires. In other words, if you have a disability and you apply for the job of a foreign language translator, it would not be discriminatory for the employer to require you to have the skill, experience, and education to be able to translate a foreign language.

The other part of being a qualified individual with a disability, in terms of employment, is that you must be able to perform the essential functions of the job, with or without reasonable accommodation.

What are “essential functions?”

Essential functions are basic job duties. To determine if a job duty is an essential function, you look at factors like whether the position exists to perform that function, the number of other employees available to perform the function or among whom the function could be distributed, and the degree of expertise needed to perform the function.

Are all employers covered by Title I of the ADA?

No. Title I of the ADA applies to private employers with 15 or more employees, all state and local governments, employment agencies, and labor unions.

What kinds of employment practices are covered by Title I of the ADA?

All of them – applying for a job, hiring, firing, promotions, compensation, training, recruitment, advertising, layoffs, leave, employee benefits, and all other conditions and privileges of employment are covered.

When should I tell an employer that I have a disability?

There is no one specific answer to this question. It really depends on your individual situation. If you need your employer to accommodate you, then, at that time, you will probably have to tell your employer about your disability. But if you don’t need an accommodation, then it is really just a personal decision about when, or even whether, to tell your employer.

Can an employer make me have a medical exam or ask questions about my disability?

A potential employer may not ask you whether you have a disability, or any questions about the nature or severity of a disability. However, a potential employer may ask questions about the ability to perform specific job functions and may ask an individual with an obvious disability to describe or demonstrate how those functions would be performed.

An employer may not ask a job applicant to take a medical exam before making a job offer. But it’s all right for an employer to condition a job offer on the result of a medical exam if this is required of all entering employees in the same job category.

What is a reasonable accommodation?

A reasonable accommodation is any kind of modification or adjustment to a job or to the work environment that makes it possible for a qualified applicant or employee with a disability to either participate in the job application process or to perform essential job functions. Reasonable accommodation also includes adjustments to make sure that individuals with disabilities have the same rights and privileges as individuals without disabilities in the workplace.

Can you give me some examples of reasonable and unreasonable accommodations?

Examples of reasonable accommodations might include making the workplace accessible to and usable by an employee with a disability, restructuring a job, modifying work schedules, providing qualified readers or interpreters, or modifying equipment. Reassigning a current qualified employee, who is unable to do the current job even with an accommodation, to a vacant position, may also be a reasonable accommodation. There is no obligation, though, to find a vacant position for an applicant who is not qualified to perform the job for which s/he is applying.

Examples of accommodations that are not reasonable, and not required, are lowering quality or quantity standards, or providing personal use items like eyeglasses, wheelchairs, or hearing aids.

Is telecommuting a reasonable accommodation?

It might be. If an employer already allows telecommuting, but has a rule that an employee is not eligible to participate in telecommuting until s/he has worked there for a specific number of months or years, then it might be a reasonable accommodation to remove that time requirement. If the nature of the job is such that being at the workplace is necessary, then the employer would not have to allow telecommuting. It really depends on a lot of factors on both the employer’s and employee’s sides.

Are there any limits on providing reasonable accommodations?

Keep in mind that the person requesting the accommodation must be otherwise qualified and able to perform the essential functions of the job, with or without reasonable accommodation. Also, the disability must be known to the employer.

The employer is not required to make an accommodation if doing so would be an undue hardship on the operation of the business.

What is an undue hardship?

Undue hardship is an “action requiring significant difficulty or expense.” This is decided by looking at factors like the nature and cost of the accommodation compared to the size, resources, and structure of the business. If the business making the accommodation is part of a larger entity, the overall resources of the larger organization would be considered.

 

So if the employer can show my accommodation request is an undue hardship, am I out of luck?

No. Even if a particular accommodation would be an undue hardship on the employer, the employer has to try to find another accommodation that would not pose an undue hardship. If the cost of the accommodation poses an undue hardship, the employer should pay the cost up to the point that there is an undue hardship and then allow the employee the option of paying for the other portion of the cost.

As long as my office is accessible, do the other parts of the office, like the kitchen and breakroom, have to be accessible?

Yes. An employee with a disability must be able to access the building, the equipment, and all facilities used by employees, unless providing access would be an undue hardship.

What if an employer refuses to hire me because the HR person thinks it wouldn’t be safe to have me around?

The ADA lets employers establish standards that exclude people who pose a direct threat to the health and safety of the individual or others if, and only if, that risk cannot be eliminated or reduced by reasonable accommodation. Direct threat means a significant risk of substantial harm.

Deciding that an employee is a direct threat must be based on an individual assessment of that particular employee and must be based on reliable medical or other objective evidence, as opposed to generalizations, ignorance, stereotypes, fears, or patronizing attitudes.

If I take illegal drugs or am an alcoholic, am I covered by the ADA?

People who are currently engaging in the use of illegal drugs are specifically excluded from the ADA definition of “qualified individual with a disability.” Therefore, employers may take action against the employee on the basis of drug use without violating the ADA.

Alcoholism is treated differently under the ADA. A person who currently uses alcohol is not automatically denied protection. A person who has alcoholism may be considered to be a person with a disability under the ADA and an employer may have to reasonably accommodate the alcoholic employee. But allowing an employee to consume alcohol, or be under the influence of alcohol, at work are not reasonable accommodations. It’s all right to discipline or even fire an employee if the alcohol use affects the person’s job performance or conduct. And of course, employers may have “no alcohol in the workplace” policies and even require that employees not be under the influence of alcohol at work, even if it was consumed elsewhere.

Does having a disability protect me from being fired or laid off?

No. It protects employees from being discriminated against on the basis of disability. It is not a violation for an employer to fire, demote, not promote, reduce hours, or change any other condition of employment for some other reason that is not related to your disability. The same situation exists with layoffs or reductions-in-force. As long as your discharge is not based on your disability, there is no violation of the ADA.

What should I do if my employer has discriminated against me because of my disability?

Complaints may be filed with either the Equal Employment Opportunity Commission (EEOC) or your state’s designated human rights agency. Private lawsuits are also an option, but you cannot file a lawsuit until after the EEOC or your state’s human rights agency has investigated your complaint and issued a notice that’s referred to as a “Right To Sue Letter.”

You can contact the EEOC at:
1.800.669.4000(voice)
1.800.669.6820(TTY)
www.eeoc.gov

Public Accommodations and the ADA

What are “public accommodations” under the ADA?

A place of public accommodation is a facility whose operations affect commerce and falls into at least one of these categories:

• Places of lodging (inns, hotels, or motels);
• Places that serve food or drink (restaurants and bars);
• Places of exhibition or entertainment (theaters, concert venues, stadiums, arenas);
• Places of public gathering (auditoriums, convention centers, lecture halls);
• Sales or rental establishments (stores, shopping centers);
• Service establishments (laundromats, banks, beauty shops, travel services, repair services, funeral homes, gas stations, professional offices, pharmacies, insurance offices, hospitals);
• Public transportation terminals, depots or stations;
• Places of public display or collection (museums, libraries, galleries);
• Places of recreation (parks, zoos, amusement parks, gyms, pools);
• Places of education (nursery schools, elementary, secondary, undergraduate, or postgraduate schools, trade or technical schools);
• Social service center establishments (day care centers, senior citizen centers, homeless shelters, food banks, adoption agencies); or
• Places of exercise or recreation (gyms, health spas, bowling alleys, golf courses).

What does Title III of the ADA require from these places of public accommodation?

These places may not discriminate against people with disabilities, and may not deny full and equal enjoyment of the goods and services offered by the place.

Do both buildings and parking lots have to be accessible to individuals with disabilities?

Yes. Parking lots are also covered by the ADA, with specific requirements for the number of spaces that must be accessible, relative to the total number of spaces in the parking lot.

What kind of businesses have to provide me with a sign language interpreter if I need one for effective communication?

There may be many different situations in which a sign language interpreter would need to be provided by a place of public accommodation, but the most common situations are those in which the person who is deaf is meeting with a lawyer, a doctor, or another professional, such as a financial planner. Interactions with people in these professions usually require the person who is seeking information to get detailed, often technical, information that can affect legal rights, financial status, or health. So the law places a greater emphasis on the provision of truly effective communication in these situations.

I had a meeting with my lawyer and I requested a sign language interpreter because I am deaf. Do I have to pay for the sign language interpreter?

No. In this case, the lawyer must pay for the sign language interpreter. The only way around that is if the lawyer can prove that it would be an undue burden in light of all of the resources available to the lawyer, including tax credits and tax deductions. “Undue burden” is a fairly tough standard, though, in that it isn’t enough for a business or any entity to simply say, “That costs more than I want to spend,” or “I don’t have that kind of money in the budget.” A court will look not only at the bottom line on an entity’s balance sheet, but also what kind of expenditures are there. In terms of providing a sign language interpreter, the lawyer cannot pass that cost to the individual client. It is also important to note that a doctor or a lawyer may not require you to bring a family member or a friend to interpret for you.

 

The day care center near my home says that it is not equipped to handle children with disabilities. Can they just refuse to accept my child who has a disability?

Day care centers cannot legally refuse to accept children with disabilities because of their disabilities unless it can show that it would cause an undue burden, considering all the financial resources available to the day care center, including tax incentives, or would fundamentally alter the services offered by the day care center.  

Do stores have to have Braille price tags? Do restaurants have to have Braille menus?

No, they don’t have to do that, as long as there are sales personnel or wait staff to provide the information verbally, if requested.

Do businesses have to let service animals come in, even if it’s a restaurant or a hospital or some place like that?

Generally, yes. A place of public accommodation must modify its policies to allow a service animal to accompany an individual with a disability, unless it would result in a fundamental alteration or would jeopardize the safe operation of the public accommodation. In a restaurant, a service animal must be allowed to accompany the person with a disability in all areas that are open to other patrons. In a hospital, the same is true, except that there may be certain areas of the hospital where having a service animal could jeopardize safety, such as in the sterile environment of an operating room.

Are all animals owned by people with disabilities classified as service animals?

Service animals are individually trained to do work or perform tasks for the benefit of an individual with a disability. Some of the more typical tasks are guiding people with impaired vision, alerting individuals with impaired hearing to certain sounds, providing minimal protection or rescue work, pulling a wheelchair, or retrieving dropped items.

I have a small dog that I like to have with me at all times. It calms me down to have her nearby. I have a letter from my doctor that says she is a therapy animal. Is that the same as a service animal?

No. Therapy animals are not service animals because they do not perform tasks for the person with a disability. Therapy animals, sometimes called companion animals or emotional support animals, are therapeutic and helpful to their owners, but they do not meet the ADA definition of service animals and are not protected by the ADA.

If a business has to let a service animal on the premises, who is responsible for feeding it?

Service animal owners are responsible for animal care and supervision.

Can a hotel charge me a pet deposit for having my service animal with me?

No, a public accommodation may not require a person with a disability to make a pet deposit as a condition of having a service animal with its owner, even if it requires such deposits for pets. A service animal is not considered a pet so the rules that apply to pets do not apply to service animals.

If a business just leases its space, then who is responsible for ADA compliance – the tenant or the landlord?

The ADA places the responsibility for compliance on both the landlord and the tenant. But the landlord and tenant might decide, through the terms of the lease, who will actually make the changes, remove the barriers, provide the aids and services, and pay for them. However, both the tenant and the landlord remain legally obligated.

How does enforcement work under Title III of the ADA?

Individuals can bring private lawsuits against the places of public accommodation to get court orders to stop discrimination. People can also file complaints with the Department of Justice (DOJ), who has the authority to file suit in cases of public importance or where there is a pattern or practice of discrimination. In these cases, the DOJ may seek monetary damages and civil penalties.

SEE PART 2 for the REST of the Disability Law Handbook