A 20|10 View of the ADA on its Silver Jubilee

1. The Second Annual Fair Housing and Public Accommodations Symposium In Celebration of the 20th Anniversary of the ADA A 20|10 View of the ADA on its Silver Jubilee Phyllis W. Cheng | Director | Department of Fair Employment and Housing | April 16 . 2010 | www.dfeh.ca.gov

2. Americans with Disabilities Act of 1990, July 26, 1990

3. ADA Amendments of 2008September 25, 2008

4. OVERVIEW: ADA • Prohibits discrimination on the basis of physical or mental disability. • Promotes equal opportunities for persons living with disabilities into all aspects of daily life: • Employment • Public accommodations • Transportation • State and local government • Telecommunications

5. “Disability” under the ADA Means • A person with a physical or mental impairment that substantially limits one or more major life activities; • A person with a record of such a physical or mental impairment; or • A person who is regarded as having such impairment.

6. Title I - Employment • Employers may not discriminate against an individual with a disability in hiring or promotion if the person is otherwise qualified for the position. • Employers can ask about one’s ability to perform a job, but cannot inquire if someone has a disability. • Employers must provide “reasonable accommodation,” such as job restructuring and modification of equipment when necessary.

7. Title II – Public Services • State and local governments must remove communication and physical barriers that restrict people with disabilities from using their services and activities. • Public entities must make every effort to: • Integrate the disabled into their existing and future services, programs, and activities; • Be able to communicate "with all of the public (telephone contacts, office walk-ins, or interviews); • Provide for the public's use of the facilities; • Allow access to programs that provide State or local government services or benefits.

8. Public Transportation • Title II: • Applies to public transportation provided by public entities through regulations by the US Department of Transportation. • Includes the National Railroad Passenger Corporation, along with all other commuter authorities. • Requires the provision of paratransit services by public entities that provide fixed route services.

9. Title III – Public Accommodations • Restaurants, hotels, theaters, doctors’ officers, pharmacies, retail stores, museums, libraries, parks, private schools, and day care centers may not discriminate on the basis of disability. • Private clubs and religious organizations are exempt. • Auxiliary aids and services must be provided to individuals with hearing or vision impairments.

10. Title IV - Telecommunications • Telephone companies must provide telecommunications relay services for hearing-impaired and speech-impaired individuals 24 hours per day.

11. Title V – Miscellaneous Provisions • Technical provisions. • Nothing in the ADA amends, overrides or cancels anything in Section 504of the Rehabilitation Act of 1973. • Includes an anti-retaliation or coercion provision.

12. Employment • “Substantial Impairment” as compared to “impairment” under the California Fair Employment and Housing Act (FEHA). Compare Colminares v Braemar Country Club (2003) 29 Cal.4th 1019. • Employers may be reluctant to hire persons with disabilities.

13. UCLA-RAND Findings Employment Discrimination Complaints by Most Common Protected Categories

14. Damages • The ADA allows private plaintiffs only injunctive relief and attorneys’ fees, but no monetary rewards to private plaintiffs who sue non-compliant businesses. • California’s Unruh Civil Rights Act provides for monetary damages to private plaintiffs. Proof of intent is not needed for damages in a suit for disability discrimination under the Unruh Civil Rights Act and the Disabled Persons Act. • See Munson v. Del Taco (2009) 46 Cal.4th 661: A plaintiff seeking damages for ADA violations under the Unruh Civil Rights Act is not required to prove intentional discrimination. • Criticism of “professional plaintiffs“ in California, because the Unruh Civil Rights Act allows private individuals to receive monetary awards from non-compliant businesses.

15. Accessibility • Thousands of requests to US DOJ to investigate barriers in older buildings and design and construction errors in brand new facilities ignore. • Most business owners put off making changes to remove barriers.

16. California Access Initiatives • California initiatives: • DOJ and DFEH investigations and settlements. • California Building Code: • Any facility for State use or funded in part or whole with State funding. • Division of State Architect jurisdiction. • Local Laws: Adoption of CBC. • Open to any public accommodation. • Open to Building Officials Interpretation

17. California: SB 1608 • CASp, Certified Access Specialist program • Testing by DSA to establish expertise in disabled • access. • Able to issue Certified Inspection Reports and • State Numbered Certificate for a facility • A - “CASp Inspected”, no barriers to the disabled. • B - “CASp Determination Pending”, barriers exist and need to be removed by a specified date.

18. Exam Accommodation • Love v. Law School Admissions Council (E.D.Pa. 2007) 513 F.Supp.2d 206, denied an ADHD student's request for extra time under the ADA. • However, the LSAC continues to grant 75 percent of the requests it receives for accommodations.

19. DFEH v. Law School Admission Council • Settled disability discrimination complaint filed against the Law School Admissions Council for alleged failure to accommodate a test applicant with ADHD. • Applicant given one and one half as much time as nondisabled applicants to take the September 2009 LSAT.  • LSAC agreed to extend deadline to use an exam fee waiver for a prior testing date.

20. Web Design: National Federation for the Blind v. Target (N.D.Cal. 2008) • ADA class action settlement with Target for failing to design its website to enable persons with low or no vision to use it.

21. 11th Amendment: Board of Trustees of the University of Alabama v. Garrett (2001) 531 U.S. 356 • Title I of the ADA violates sovereign immunity rights of states under 11th Amendment. • Provision allowing private suits against states for money damages was invalidated.

22. Sidewalks: Barden v. City of Sacramento (9th Cir. 2002) 292 F.3d 1073 • Sidewalks are a "program" under ADA and must be made accessible to persons with disabilities.

23. Cruise Ships: Spector v. Norwegian Cruise Line (2005) 545 U.S. 119 • Vessel flying the flag of a foreign nation was not exempt from the requirements of the ADA, because it was a business headquartered in the United States whose clients were predominantly Americans, and operated out of port facilities throughout the United States.

24. Mental Illness: Olmstead v. L.C. (1999) 527 U.S. 581 • Under Title II of the ADA, mental illness is a form of disability covered under the ADA. • Unjustified institutional isolation of a person with a disability is a form of discrimination because it "perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life."

25. Michigan Paralyzed Veterans of America v. The University of Michigan (E.D.Mich. 07-11702 2008) • required stadium to add 329 wheelchair seats throughout the facility by 2010, and an additional 135 accessible seats in clubhouses to go along with the existing 88 wheelchair seats.

26. Department of Fair Employment & Housing • The mission of the DFEH is to protect Californians from employment, housing and public accommodation discrimination, and hate violence. • The DFEH enforces the Fair Employment and Housing Act (FEHA), Unruh Civil Rights Act, Ralph Civil Rights Act, Disabled Persons Act • Its jurisdiction extends to individuals, private or public entities, housing providers, and business establishments within the State of California.

27. DFEH Renaissancewww.dfeh.ca.gov