ADA 101: Just the Basics
What is ADA? What is the American with Disabilities Act?
On July 26, 1990 President George Bush signed The Americans with Disabilities Act (ADA) into Law.
The ADA is a civil rights law that protects people with disabilities against many forms of discrimination. It does not, as some might have you believe, set hiring quotas or mandate affirmative action. It provides a level playing field by requiring certain reasonable accommodations and structural modifications to provide access.
What is the definition of “Disability” under the ADA ?
Individual with a Disability:
An individual with a disability under the ADA is a person who has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment. Major life activities are activities that an average person can perform with little or no difficulty such as walking, breathing, seeing, hearing, speaking, learning, and working.
Title I Definitions
*Qualified Individual with a Disability*
A qualified employee or applicant with a disability is someone who satisfies skill, experience, education, and other job-related requirements of the position held or desired, and who, with or without reasonable accommodation, can perform the essential functions of that position.
**NOTE** Recent Supreme Court decisions have altered this definition.
Refer to this report by DREDF for more information.
Reasonable accommodation may include, but is not limited to, making existing facilities used by employees readily accessible to and usable by persons with disabilities; job restructuring; modification of work schedules; providing additional unpaid leave; reassignment to a vacant position; acquiring or modifying equipment or devices; adjusting or modifying examinations, training materials, or policies; and providing qualified readers or interpreters.
Reasonable accommodation may be necessary to apply for a job, to perform job functions, or to enjoy the benefits and privileges of employment that are enjoyed by people without disabilities. An employer is not required to lower production standards to make an accommodation. An employer generally is not obligated to provide personal use items such as eyeglasses or hearing aids.
An employer is required to make a reasonable accommodation to a qualified individual with a disability unless doing so would impose an undue hardship on the operation of the employer’s business. Undue hardship means an action that requires significant difficulty or expense when considered in relation to factors such as a business’ size, financial resources, and the nature and structure of its operation.
*Prohibited Inquiries and Examinations*
Before making an offer of employment, an employer may not ask job applicants about the existence, nature, or severity of a disability. Applicants may be asked about their ability to perform essential job functions. A job offer may be conditioned on the results of a medical examination, but only if the examination is required for all employees entering in that same job category. Medical examinations of employees must be job-related and consistent with business necessity.
*Drug and Alcohol Use*
Employees and applicants currently engaging in the illegal use of drugs are not protected by the ADA when an employer acts on the basis of such use. Tests for illegal use of drugs are not considered medical examinations and, therefore, are not subject to the ADA’s restrictions on medical examinations. Employers may hold individuals who are illegally using drugs and individuals with alcoholism to the same standards of performance as other employees.
Title III Definitions
Readily Achievable refers to barrier removal that is “easily accomplishable and able to be carried out without much difficulty or expense.”
*”Readily Achievable” (Multi-Site Business) ?*
In determining whether an action to make a public accommodation accessible would be “readily achievable,” the overall size of the Parent Corporation or entity is only one factor to be considered. The ADA also permits consideration of the financial resources of the particular facility or facilities involved and the administrative or fiscal relationship of the facility or facilities to the parent entity.
What is covered by the ADA ?
The Americans with Disabilities Act has several sections or
“Titles”. The Titles that apply to most employers and
Title I – Employment
Title II – State & Local Government
Title III – Public Accommodations
Who Must Comply with the ADA ?
Title I – Employers with 15 or more Full or Part-time employees.
Title II – All State & Local Government Entities.
Title III – Most Business and Commercial Facilities that deal directly with members of the public.
Title I – Employment
Title I of the ADA DOES NOT REQUIRE you to hire an unqualified person with a disability, for that matter it does not require you to hire a person with a disability at all. What Title I says, in the simplest of terms, is that you cannot refuse to hire a qualified person with a disability based on their disability.
So if your brother in law is qualified and you want to hire him over someone with a disability, simply because he’s your brother in law, you still can. You just can’t deny a job to a qualified candidate because they use a wheelchair or are blind or deaf or have some type of mental illness. When you think about it the ADA is about hiring the most qualified person for the job and isn’t that who you want working for you anyway, with or without a disability ?
Title I covers all aspect of employment including recruitment, hiring, training, promotion, discipline, benefits and termination.
The two biggest requirements of Title I are:
First – There can be NO MEDICAL INQUIRIES made until a conditional offer of employment is made to the applicant. This means that there can be no medical questions on the application or during the interview. After the conditional offer of employment is made, JOB RELATED medical inquiries can be made, including physical and psychological exams (Job Related Only). This is intended to level the playing field and determine who is the most qualified applicant, regardless of disability.
Secondly – An employer must provide a Reasonable Accommodation to an employee or applicant with a known disability if it is needed to allow them equal access, opportunity or enjoyment of benefits. This accommodation is based on need and is determined by the employer, hopefully with consideration given to the knowledge and experience of the person with the disability. We always tell people that if a “Yugo” will do the job but the employee wants a “Cadillac”
maybe you could both agree on a “Chevy”. What we mean is that accommodations don’t have to cost a lot of money to be effective.
Some example of Reasonable Accommodation include:
Raising a desk up on blocks to allow room for a
wheelchair to roll under it.
Assisting someone who is blind to fill out a job
Hiring a Sign Language Interpreter for a job interview
or staff meeting.
Allowing a worker with diabetes to eat at their desk to
maintain their sugar levels.
Allowing a blind worker, who depends on public
transportation, to arrive and leave at times matching the
local bus schedule.
Buying a specialized piece of computer or
Making sure that the company gym or office party are
accessible to all employees.
Title II – State and Local Government
Title II is far reaching. State or local government entities must provide equal access to their services or offer a similar and equitable service to people with disabilities. This means that everything from swimming lessons to 911 calls to municipal meetings is covered. Covered entities must also complete a “Transition Plan” describing how they will comply with the ADA.
The right to participate in state and local government services, opportunities, meetings or programs should not be denied because a person has a disability. The ADA requires that “Program Access” be provided and, while this does NOT mean that every government building must be accessible, physical access, modification to policies and procedures and effective communication methods are all used to accomplish overall Program Access. If public transportation is offered by a state or local government entity then it also must be accessible or provide a para-transit system for people with disabilities.
Title III – Public Accommodations
Title III has the greatest effect on most businesses. The basic point of Title III is that businesses that deal directly with the public must either be accessible or offer equivalent services.
Some Examples of Covered Entities would include:
Retail Stores and Rental Shops
Places of Recreation and Entertainment
Classes, Schools and Places of Education
Hotels, Motels, Inns and other Places of Lodging
Restaurants, Cafeterias, Pubs, Bars and Lounges
Gyms, Dance Studios and other Places for Exercise
Private Entities providing Transportation
(Taxis, Buses, Tour Buses, Car Rental)
Factory Tours, Winery Tours and any entity inviting
the public in to tour a facility
(Doctors, Lawyers, Accountants, Hair Salons, Etc)
Places of Exhibition
(Museums, Galleries, Concerts, Theaters, Stadiums, Etc)
Businesses are required to operate in a way that does not discriminate against people with disabilities. This can be done in many ways and is determined on a case-by-case basis. Policies may need to be modified, eligibility criteria reviewed and services altered, if it does not require a “fundamental” change to the nature of the business.
Title III also covers Physical Access and Removal of Structural Barriers. This is addressed in the ADA Accessibility Guidelines (ADAAG) in three sections. It is important to note that NO COVERED BUSINESS IS TOTALLY EXEMPT FROM ADAAG COMPLIANCE
Structures built BEFORE January 26 1992 are not required to FULLY comply with the ADAAG standards instead they are REQUIRED to remove barriers that are readily achievable. This means without much difficulty or expense or in plain terms if the access problem can be fixed cheaply and easily then it is probably required. This is an ongoing process and the ability to remove barriers should be reviewed as circumstances change.
Alterations and Renovations
If an existing structure is altered or renovated than the altered area MUST COMPLY and, in cases involving Primary Function areas, access improvements to entrances, rest rooms, parking and other path of travel items may also be required.
ALL NEW CONSTRUCTION, with very few exceptions, BUILT OR PERMITTED AFTER JANUARY 26 1992 MUST COMPLY FULLY WITH THE ADAAG GUIDELINES. Exception to the ADAAG standards are very limited – Churches, Structures owned by Native American Tribes and very rarely Structural Infeasibility are among the exceptions.
What Happens If You Don’t Comply ?
Each Title of the ADA has specific enforcement provisions but it is good to remember that the ADA is a FEDERAL LAW and the US Department of Justice and the Equal Employment Opportunity Commission are the two primary enforcement agencies. Federal FINES AND PENALTIES may be levied.
Civil court action is also among the enforcement options with some sections allowing up to $300,000 dollars in damages.
There are two things that the enforcement section of the ADA does not mention. First is the damage to the reputation to your business if a complaint should be filed, especially if it is for the lack of a simple, low cost solution. The second is the loss of income from the 54 million people with disabilities that cannot purchase your goods and services if you are not accessible to them.
Throughout the ADA an interactive decision making process as well as mediation and alternative dispute resolution are encouraged.