Americans with Disabilities Act

1. Americans with Disabilities Act Law and Poverty

2. History of ADA Act of 1990 –Section 504 • Rehabilitation Act of 1973 (29 USC 791) – called Section 504 Section 504 prohibited discrimination vs handicapped in • a. any federal program or activity • b. any program or activity receiving federal funds

3. Section 504 Coverage • a. handicapped individual • b. otherwise qualified to participate • c. excluded solely for reason of handicap • d. program or employer RECEIVES FEDERAL ASSISTANCE

4. Section 504 Definition of handicapped • a. a physical or mental impairment that substantially limits one or more of the major life activities of such individual • b. a record of such impairment • c. being regarded as having such an impairment

5. Section 504 to ADA Limited coverage of Section 504 leads to ADA

6. Congressional Purpose of ADA • Congress was presented with information about people with disabilities: • i. SSD & SSI & related programs cost tens of billions annually • ii. 82% of the disabled say they would rather work • iii. 43 million people meet the act's definition of disability

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

8. Coverage of ADA Congress estimated 43 million persons have one or more physical or mental disabilities as defined in statute

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

10. ADA Definition of Disability • A: a physical or mental impairment • that substantially limits one or more major life activities of such an individual; or • B. a record of such an impairment or e.g. person with history of physical or mental illness, even if impairment does not currently exist; e.g. person who suffered heart attack; former cancer patients; recovered alcoholics or drug addicts • C. being regarded as having an impairment e.g. parents or caretaker of child with AIDS or even a severely disfigured burn victim

11. Others Protected by ADA 1. Retaliation prohibited against non-disabled persons who oppose unlawful discrimination against the disabled. (42 USC 12204 (a)) 2. Also those who associate with or who provide care to those with disabilities are protected by ADA from discrimination: It is unlawful for a covered entity to exclude or deny equal jobs or benefits to, or to otherwise discriminate against, a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a family, business, social or other relationships or association.

12. ADA refused to exactly define physical or mental impairment Physical or Mental Impairment are purposefully not exactly defined to avoid limiting definition and to allow room for future growth in recognition of disabilities

13. Examples of Physical Impairments • . House and Senate reports gives nonexclusive lists of physical impairments that cover everything: • physiological conditions or disorders, • cosmetic disfigurement or • anatomical loss covering of any of the body systemse.g. covers cancer, diabetes, muscular dystrophy, epilepsy, cerebral palsy, paraplegics, but also covers asthma and HIV and AIDS

14. Examples of Mental Impairments • Reports cover any mental • or psychological disorder • such as mental retardation, organic brain syndrome, • emotional or mental illness • and learning disabilities

15. ADA Exclusions Does cover substance abusers or recovering alcoholics but NOT those currently engaging in illegal drugs or suffering from active alcoholism Also does NOT include: temporary, nonchronic ailments of short duration (e.g. loss of one arm is covered, broken arm is not) Does NOT cover environmental, economic or cultural disadvantages nor age, nor being a homosexual, bisexual, compulsive gamblers nor having a prison record

16. ADA & Employment – Title I Title I of the ADA prohibits discrimination in all phases of employment hiring, advancement, termination, compensation or other terms of employment

17. Title I of ADA – disability definition • i. with a disability, or • ii. who has a record of a disability, or • iii. is perceived as having a disability or • iv. who is associated with someone who has a disability

18. Title I ADA disability def (cont) • PERSON MUST BE DISABLED PLUS: • i. otherwise qualified • ii. to perform the essential functions of the job • iii. with or without reasonable accommodation (e.g. hearing impaired receptionist) (This is similar to 42 usc 2000e: commonly called "Title VII" which prohibits discrimination based on race, gender, age)

19. NOT AFFIRMATIVE ACTION; EQUAL OPPORTUNITY Lawyers should know the difference ADA is Equal Opportunity

20. ADA Requirements for Employers Must Provide or at least Investigate “Reasonable Accommodation” for: • a qualified person with a disability • who is able to perform the essential functions of the job

21. Reasonable Accommodation by Employers Statute itself lists several examples: • 1. physical accessibility (internal and external) must be done • 2. job restructuring may be called for or re-design of office procedures • 3. flex time; shift adjustments • 4. modifying equipment (hardware and software) • 5. changing examination procedures • 6. providing qualified readers, interpreters and attendants

22. Cost of Accommodation? • Not necessary if cost creates "undue financial hardship" on employer • Recall that Congress decided this was in common good – thus costs passed on to all employers and in turn to customers

23. What is “undue financial hardship?” • case by case determination based on: • nature and cost of accommodation • financial resources of employer

24. Employer Defenses to ADA Claim • 1. Job relatedness and business necessities defense (42 USC 12113(a)) • 2. Religious Entity Defense (42 USC 12113(c)(1) • 3. Undue Hardship Defense (29 CFR 1630.15(d)) • 4. Health and Safety Defense (42 USC 12113(b))

25. Job relatedness and business necessities defense • a. neutral qualification standards • b. essential qualifications of job • c. REMEMBER the ADA mandates employers have a duty to attempt or at least investigate the availability of reasonable accommodations

26. Religious Entity Defense • religious entity may give preference in employment to individuals of their religion to perform work connected with the activities of their religion • religious employers may require employees conform to tenants of their religion

27. Undue Hardship Defense • A defense to refusal to make reasonable accommodation is that it would have been an undue hardship on the employer • However, employer cannot rely on such an assertion. it must produce evidence and demonstrate undue hardship • Courts are directed to consider • i. nature and cost of accommodation • ii. overall financial resources of employer • iii. type of employer and type of facility

28. Health and Safety Defense • An employer may require that employees not pose a direct threat to the health or safety of other individuals in the work place. • Reasonable accommodation is still required • EEOC has identified four factors to evaluate the direct threat defense • i. duration of the risk • ii. nature and severity of the potential harm; • iii. likelihood that potential harm will occur; • iv. the imminence of the potential harm.

29. Other Forms of ADA Employment Discrimination • A. limiting segregating of classifying jobs or applicants by disability • B. Cannot contractually discriminate e.g. health care coverage • C. Cannot make pre-employment tests a screening device for people with disabilities • D. cannot make pre-employment medical tests condition of job offer unless essential part of the job

30. Pre-employment Screening - 1 • The ADA requires that tests which screen out persons with disabilities be job related and  consistent with business necessity. • However, tests which measure aptitude, physical agility, intelligence and specific skills are not considered to be "medical examinations" under the ADA and are not subject to the additional special rules which govern medical examinations. • Make sure that any tests you do use are designed to test the essential functions of the job, and that they are accurate predictors of successful performance on the job.  If the tests you use screen out persons with disabilities, they must be job related and consistent with business necessity.

31. Pre-Employment Screening - 2 • There Special ADA Rules for Medical Examinations • MEDICAL EXAMINATIONS ARE PROHIBITED UNTIL AFTER EMPLOYERS HAVEMADE A JOB OFFER TO THE APPLICANT.  There are no exceptions. • Employment can be conditioned on the results of an applicants post-offer medical examination. • NOTE: Employers who require medical examinations, must require medical examinations of all entering employees, or all entering employees in the same job category for a certain position. Cannot give an examination to some and not to others.

32. Title I - Remedies • Enforcement follows Title VII - Civil Rights Act of 1991 • First investigated by EEOC • Jury trial • Compensatory damages and punitive damages, with some limits depending on size of employer • Attorney fees, costs and expert fees

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

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

35. What Places Covered? All. The Justice Department estimates over 5 million places constitute public accommodations. The following private entities are considered public accommodations: (42 USC 12181(7) • a. all places of lodging • b. all places serving food or drink • c. all places of entertainment • d. all retail establishments • e. all service establishments • f. all places of public transportation • g. professional offices of health care providers or lawyers and hospitals • h. etc and everything else Even private homes can be public accommodations if it is used as a facility which would fall into the categories listed above Exemptions are available for private clubs and religious entities

36. Protected Persons Law protects current and potential customers and clients with disabilities who otherwise meet eligibility requirements. E.g. a health spa which limits membership to 18 years or older could refuse membership to 17 year old with disability but not 19 year old.

37. Prohibited Practices • Denial of Participation • Unequal benefit • Segregated Setting • Retaliation or Coercion • Discrimination against Associates • Maintenance of Accessible Features • Insurance Coverage not a Defense

38. Obligations of Public Places - 1 • Cannot use eligibility criteria which screen out or tend to screen out individuals with disabilities unless based on actual safety risks • CANNOT SET DISCRIMINATORY CRITERIA: • e.g. cannot require drivers license to cash checks, but can require appropriate id

39. Obligations of Public Places - 2 • Modifications in Policies, Practices and Procedures 28 CFR 36.302 • Requires public accommodations modify their policies, practices, or procedures to permit the use of its services by individuals with disabilities

40. Obligations of Public Places - 3 • Auxiliary Aids and services 28 CFR 36.303 • Requires public accommodations provide auxiliary aids and services to the disabled to allow them to participate. Applies particularly to communication with disabled and includes: • a. aids for hearing impaired like interpreters, amplifiers for telephones, TDD's, open and closed captioning • b. aids for visually impaired like readers, taped texts, braille materials, large print • c. use of the most advanced equipment is not required so long as effective communication is insured

41. Cost of Auxiliary Aids Services Not required if “undue burden” on public accommodation, which is determined by analyzing: • i. nature and cost of action needed • ii. overall financial resources of site • iii. relationship of site with parent company • iv. financial resources and size of parent company

42. Obligations of Public Places - 4 Removal of Barriers: • Requires the removal of architectural barriers or physical barriers of any kind when such removal is readily achievable, i.e. easily accomplishable and without much difficulty or expense • Substantial detail in regulations, including examples of readily achievable, modest measures which should be taken: • a. installing ramps, curb cuts, repositioning shelves, repositioning telephones, widening doors, eliminating turnstiles, rearranging toilets, removing high pile, low density carpet, installing vehicle hand controls

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

44. Title III - Remedies Actions may be brought for injunctive relief by individuals Actions may be brought for damages by the Attorney General Attorney General may also seek civil fines of up to $50,000 for first violation and $100,000 for subsequent violations