AMERICANS WITH DISABILITIES ACT
(ADA)



The Americans with Disabilities Act (ADA) is a revolutionary piece of civil rights legislation. The law is designed to protect the civil rights of people who have physical and mental disabilities, in a manner similar to the way that previous civil rights laws have protected people who are of various races, religions, and ethnic backgrounds. The ADA mandates changes in the way that both private businesses and the government conduct employment practices and provide products and services to the general public to ensure that all Americans have full access to, and can fully participate in, all aspects of society. It was the first federal law that required privately financed businesses to provide physical accessibility in existing buildings. The ADA requires the removal of barriers that deny individuals with disabilities equal opportunity and access to jobs, public accommodations, government services, public transportation, and telecommunications.

THE ADA'S LEGAL STRUCTURE

On July 26, 1990, President George Bush signed the ADA into law. The legal structure of the ADA is based on that of the Civil Rights Act of 1964 and the Rehabilitation Act of 1973, and much of its wording is taken directly from these earlier acts.

The ADA uses concepts of disability, accessibility, and employment that were introduced in the Architectural Barriers Act of 1968 and the Rehabilitation Act of 1973. These two federal laws anticipated the ADA by mandating a level of accessibility in federally funded buildings and programs. The concepts of "Reasonable Accommodation" and "Undue Burdens," which are found in Title I and Title III of the ADA came from Section 501 of the Rehabilitation Act. The concept of "Program Accessibility" using changes in services, policies, or programs to provide equal access came from Section 504 of the Rehabilitation Act. The ADA extends these service concepts to all state and local facilities and programs in Title II, and to private businesses in Title III. The architectural accessibility provisions of Title III extend to commercial buildings, including studios, factories, office buildings, and warehouses that are not open to the public.

It is estimated that one of every five Americans has a disability. The ability of such people to participate in the mainstream of society has gradually increased during the last 30 years as a result of improvements in assistive technology and auxiliary aids and services, as well as expanding requirements for accessibility in newly constructed facilities. As defined in the ADA, the term "disability" has a three-part definition:

  1. people who have a physical or mental impairment that substantially limits one or more major life activity;
  2. people who have a record of an impairment which substantially limits major life activities; and
  3. people who may be regarded by others as having such an impairment.

The ADA consists of five separate parts or titles: Title I—Employment; Title II —Public Services; Title III —Public Accommodations and Commercial Facilities; Title IV—Telecommunications; and Title V—Miscellaneous.

TITLE 1. EMPLOYMENT.

Prohibits discrimination against qualified individuals with disabilities with regard to employment. The act provides individuals with protection from discriminatory treatment arising from corporate activities and policies governing the recruitment, hiring, training, promotion, pay, job assignment, leaves of absence, benefits, and social programs. For employers with 25 or more employees, the requirements became effective on July 26, 1992. For employers with 15 to 24 employees, the requirements became effective on July 26, 1994.

TITLE II. PUBLIC SERVICES.

Prohibits discrimination in programs, services, or activities of public entities (state and local governments), including public transportation operated by public entities. The provisions of Title II that do not involve public transportation became effective on January 26, 1992.

TITLE Ill. PUBLIC ACCOMMODATIONS AND COMMERCIAL FACILITIES.

Requires that private businesses that are open to the public—including restaurants, department stores, convenience stores and specialty shops, and hotels and motels—allow individuals with disabilities to participate equally in the goods and services that they offer. This title also requires that all future commercial facilities, including office buildings, factories, warehouses, as well as places of public accommodation, be constructed so that they are accessible to individuals with disabilities.

Title III also mandates modifications in policies, practices, and procedures; the provision of auxiliary aids and services; the provision of accessible transportation services when transportation services are offered; and the removal of architectural and communications barriers. As of August 26, 1990, all newly ordered or leased vehicles for fixed route systems with 17 seats or more (including the driver) must be accessible; this includes accessibility to persons in wheelchairs.

As of January 26,1992, fixed route or on-demand transportation services when viewed as a whole must be accessible. This includes accessibility to persons in wheelchairs, and encompasses hotel to airport shuttles and similar shuttle services.

As of the same date, existing places of public accommodation must modify policies, practices, and procedures; they must provide auxiliary aids and services; and they must remove certain architectural and communications barriers, where readily achievable.

Also as of January 26, 1992, alteration for which construction began must meet the applicable requirements of the ADA Accessibility Guidelines, regardless of the permit or permit application date.

As of January 26, 1993, new facilities designed and constructed for first occupancy after this date must comply with Title III requirements.

TITLE IV. TELECOMMUNICATIONS.

Requires telephone companies to make relay services available for persons with hearing and speech impairments. This provides equal opportunity for people with speech or hearing impairments to use telephone services. The requirements became effective on July 26, 1993, for provision of operator relay services.

TITLE V. MISCELLANEOUS.

Ties the ADA to the Civil Rights Act of 1964 and its amendments. It includes a variety of legal and technical provisions, including a provision that stipulates that the ADA does not override or limit the remedies, rights, or procedures of any federal, state, or local law which provides greater or equal protection for the rights of individuals with disabilities.

A few of the key terms and definitions in the ADA are "Public Accommodation," "Reasonable Accommodations," and "Readily Achievable." As defined in the ADA, the term "Public Accommodation" refers to any private place of business that is open to the public for the sale or lease of goods and services. The act lists 12 general categories of public accommodation:

  1. places of lodging;
  2. places serving food or drink;
  3. places of exhibition and/or entertainment;
  4. places of public gathering;
  5. sales or rental establishments;
  6. service establishments;
  7. stations used for specified public transportation;
  8. places of public display or collection;
  9. places of recreation;
  10. places of education;
  11. social service center establishments; and
  12. places of exercise or recreation.

As defined in the ADA, there are two types of action employers or public places must undertake for people with disabilities: "Reasonable Accommodations" and "Readily Achievable." "Reasonable Accommodations" has to do with employees, and no modifications must be undertaken to fulfill the "Reasonable Accommodations" requirement until a qualified individual with a disability has been hired." Reasonable Accommodations" must be made unless they impose a significant difficulty or expense. "Readily Achievable" has to do with clients or guests. The term means easily accomplishable and able to be carried out without much difficulty or expense. "Readily Achievable" modifications must be made in anticipation of a disabled guest's or client's needs, before they ever arrive on the premises.

THE ADA IN PRACTICE

In the years since the ADA came into effect, accessibility of public places and businesses to people with disabilities has increased significantly. The act has also enabled people with disabilities to mount legal challenges against what they feel is discriminatory treatment in the workplace. Despite these advances, the ADA has also spawned controversy, and in some cases has conflicted with earlier statutes.

To some degree, the ADA has come into conflict with the Occupational Safety and Health Act of 1970 (OSHA), despite an Equal Employment Opportunity Commission (EEOC) Technical Assistance Manual directive that "if a standard is required by another federal law, an employer must comply with it and does not have to show that the standard is job related and consistent with business necessity." The conflict can arise in cases where employees' physical disabilities place them in dangerous situations in the workplace. Under ADA guidelines, an employer would not be able to shift the employee to a safer position, an action that would in fact be mandated by the OSHA. Employers have struggled to grapple with this apparent contradiction by working with their employees to either alter workplace conditions to ensure the safety of disabled workers or find equivalent and mutually acceptable employment in safer conditions for disabled workers.

ADA guidelines can also contradict those of the Employee Retirement Income Security Act of 1974 (ERISA). ERISA allows employers to exclude, or limit the insurance benefits available to, employees with certain disabling conditions. Since ADA mandates that individuals cannot be discriminated against due to their disabilities, corporate insurance plans that are legal under ERISA can be illegal under the ADA. The EEOC responded to this contradiction by requiring employers to first show compliance with ERISA, and then prove that any disability based distinction in its insurance and benefits plans is not a "subterfuge" to avoid compliance with ADA. To prove absence of subterfuge, employers must show that any disability-based distinctions in the provision of insurance and benefits is based on "legitimate actuarial data" or "reasonably anticipated experience," and that conditions with similar actuarial data are treated equivalently. Employers can also prove absence of subterfuge if they can show that any distinctions made in insurance and benefits provisions are necessary to avoid an "unacceptable change" in insurance coverage or premiums. Despite these guidelines, many employers and insurance companies worry that advances in medical science and assistive technology may render existing actuarial data obsolete, leaving them open to litigation under the ADA even though their insurance and benefits policies were originally in compliance with the act.

State workers' compensation laws also come into conflict with the provisions of the ADA. Job-related injuries of a permanent or long-term nature can be considered disabilities under the ADA, and in such cases employers are required by the act to undertake any accommodations necessary to allow disabled workers to return to their jobs. Furthermore, employers that use health screening to identify injury-prone job candidates may be in violation of the ADA, despite the long-standing use of such screening to reduce workers' compensation and OSHA liabilities.

Finally, the ADA can contradict National Labor Relations Act (NLRA) guidelines for industrial relations. For instance, employer attempts to make reasonable accommodation for disabled employees may come into conflict with NLRA requirements for collective bargaining in any case involving changes in the terms and conditions of employment. Despite EEOC attempts to clarify this situation, it is still unclear whether or not employer actions to provide reasonable accommodation for disabled workers must first be approved through collective bargaining.

Confusion has also arisen regarding the definition of a disability as set forth in the ADA. Most notably, the limited mental health coverage offered by many employee insurance policies has been challenged as discriminatory under the ADA. While no such cases have reached the U.S. Supreme Court, the U.S. Court of Appeals for the Sixth Circuit in Cincinnati, Ohio, ruled in 1997 that employee insurance policies that offer differing benefits for physical and mental disabilities may be in violation of the ADA.

Similarly, many individuals have advocated extension of the ADA's definition of disability to include obesity. Although employers maintain that obesity should not qualify as a disability due to its essentially voluntary nature, the U.S. Court of Appeals for the First Circuit ruled in the 1994 case of Cook v. State of Rhode Island that obesity does constitute a disability under ADA, even when such obesity results from purely nonphysiological causes. In the court's opinion, since individuals with conditions such as emphysema and cardiopulmonary disease are guaranteed equal treatment by insurance providers by the ADA, and since these conditions often arise as the result of a voluntary habit, namely smoking, the voluntary component of obesity does not remove individuals suffering from the condition from the protection of the ADA.

While defining exactly which conditions constitute disabilities has proven problematic in enforcing the ADA, the definition of an employer under the act has also aroused controversy. Court rulings in the mid 1990s expanded the definition of employers under the act to include voluntary associations, such as labor unions, professional associations, health insurance providers, and other organizations offering group benefits to their members.

In 1994 the U.S. District Court in New Hampshire ruled that companies that provide group health insurance policies to other companies and organizations must be considered employers under the ADA, and that, as such, their policies must adhere to ADA strictures against discrimination due to physical disability. This ruling specifically applied to people with HIV and AIDS, who had been excluded from certain insurance benefits because of their condition. This ruling was confirmed and expanded in the June 1998 case of Bragdon v. Abbott, in which the U.S. Supreme Court ruled that a dentist who refused to perform an in-office cavity filling for a patient with AIDS violated that patient's rights under the ADA, despite the dentist's willingness to perform the procedure in a hospital setting (albeit at greater cost to the patient).

The U.S. Court of Appeals for the First Circuit also ruled in October 1994 that trade associations offering group benefit and insurance packages could be considered employers under the ADA. The denial of benefits to the heirs of a person with AIDS spawned the lawsuit.

In a highly publicized 1998 case, professional golfer Casey Martin, a victim of a circulatory ailment that renders him incapable of walking a golf course, successfully sought exemption under the ADA from Professional Golfers' Association (PGA) rules barring players in competitive events from using carts. In this case the courts ruled that the PGA, a professional association, did qualify as an employer under the ADA, and that to allow Martin to use a cart would constitute reasonable accommodation of his disability.

The confusing nature of certain conditions and requirements set forth in the ADA, and its conflicts with existing statutes and regulations, has made the act the subject of widespread litigation. By 1994 approximately 50 percent of cases pursued under the ADA arose from allegations of discriminatory discharge from employment. A further 23 percent of ADA charges brought to trial arose from allegations of failure by employers to provide reasonable accommodation to employees with disabilities; notable among these cases was that of Harmer v. Virginia Electric and Power Co., in which the courts held that an employer was not obliged to make an entire floor of its offices smoke-free to reasonably accommodate an employee with asthma. Allegations of discrimination in hiring accounted for 13 percent of cases brought under the ADA through 1994, cases arising from allegations of disability-based harassment spawned 10 percent of ADA cases, and allegations of benefits-related discrimination represented the remaining 4 percent of ADA cases brought during the period.

While the exact scope and nature of the ADA was hammered out in the courts, challenges to the legal validity of the act were also mounted. In 1994 International House of Pancakes (IHOP), a national restaurant chain, challenged a lower court ruling requiring the company to renovate an existing outlet in San Diego to make it accessible to people with physical disabilities. In presenting its case, the company argued that the U.S. Congress had overstepped its constitutional authority in passing the ADA, which places tangible obligations on private companies. The case reached the U.S. Supreme Court, which dismissed IHOP's claims.

A second, more subtle challenge to the ADA was mounted in 1996 by the First Colony Life Insurance Co., which was originally sued in 1995 by an individual with HIV who claimed that the company, in violation of the ADA, refused to provide him with a life insurance policy because of his condition. The company responded that the ADA did not apply in the case, but rather could only be applied to instances in which an employer denied an individual "physical access to, or equal enjoyment of" any of its facilities. First Colony's claims were denied, however, on the grounds that the ADA defies narrow interpretation given its broad mandate to "address the major areas of discrimination faced day-to day by people with disabilities."

Throughout its brief history, the Americans with Disabilities Act has created consternation among the business community and aroused controversy regarding the exact nature and correct accommodation of physical and mental disabilities. The sheer number of court cases arising under the act proves its usefulness, and court interpretations of the act and its mandate have ensured that the civil rights of people with disabilities relating to public areas and the workplace will continue to receive heightened protection.

SEE ALSO : AIDS in the Workplace ; Civil Rights Act of 1991

[ Susan Bard Hall ,

updated by Grant Eldridge ]

FURTHER READING:

Anderson, Teresa. "ADA." Security Management, December 1997, 127.

Bamett, Tim, Winston H. McVea Jr., and Kenneth Chadwick. "Pre-employment Questions under the Americans with Disabilities Act." SAM Advanced Management Journal, Winter 1997, 23.

Coil, James H., Ill, and Charles M. Rice. "The Tip of the Iceberg." Employee Relations Law Journal, Spring 1994, 485.

Hoffman, Mark A. "AIDS Ruling Extends Reach of ADA beyond Employers." Business Insurance, 24 October 1994, 2.

McCormick, Brian. "HIV Insurance Restrictions Hit in ADA Cases." American Medical News, 24 January 1994, 6.

Saimen, John P. S. Accommodating All Guests: The Americans with Disabilities Act and the Lodging Industry. American Hotel & Motel Association, December 1992.

Schmitt, Frederick. "ADA Disability Ruling Seen Forcing Benefit Cuts." National Underwriter Property and Casualty-Risk and Benefits Management, 17 February 1997, 41.

Schwartz, Matthew P. "Court Rules Health Insurers Can be Sued Under the ADA." National Underwriter Property and Casualty Risk and Benefits Management, 24 October 1994, 1.

Silbergeld, Arthur F., and Mark B. Tuvim. "Federal Anti-discrimination Laws Extend to Protect Obesity." Employment Relations Today, Spring 1994, 101.

Skoning, Gerald D., and Condon A. McGlothlen. "Other Laws Shape ADA Policies." Personnel Journal, April 1994, 116.

"Unlocking the Links." U.S. News and World Report, 23 February 1998, 10.

U.S. Department of Justice. Civil Rights Division. The Americans with Disabilities Act - Title 11 Technical Assistance Manual. Washington: GPO.

"U.S. Supreme Court Decision in Bragdon v. Abbott," 25 June 1998. Available from caselaw.findlaw.co .

"U.S Supreme Court Rejects IHOP Inc. Challenge to ADA." Nation's Restaurant News, 27 June 1994, 2.



User Contributions:

1
Donna White
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Aug 22, 2013 @ 9:21 pm
My disabled dad was living with me and then went to live in a nursing home, prior to going to the nursing home my landlord was going to allow me to put a ramp up so I could get my dad in and out of our home easier. I am moving my dad back home with me so i had a ramp built, my landlord has left me notes telling me that I cannot have the ramp and that he feels that it is not safe for my dad to move back home and to remove the ramp. Can he leagaly refuse to allow my dad to move back in with me and make me remove the ramp? I had to reverse the entry door also to allow entry from the ramp in to the house, he has also informed me to put the door back as it was, if I do the ramp cannot be used because the door will block the access into the home from the ramp.

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