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Understanding The AmericansWith Disabilities Act
Introduction
On July 26, 1990, President George Bush signed into law "The Americans with Disabilities Act of 1990" (ADA). This law gives civil rights protection to individuals with disabilities, similar to that provided to individuals on the basis of race, sex, national origin and religion. The ADA guarantees equal opportunity for individuals with disabilities in the areas of employment, state and local government services, public transportation, privately operated transportation available to the public, places of public accommodation and telephone services offered to the general public. Many regard the ADA as the most sweeping piece of civil rights legislation since the Civil Rights Act of 1964; others believe that because of the widespread physical barriers the ADA will cause to be removed, it is the most far-reaching civil rights law ever enacted.
To understand the basis for the enactment of the ADA in 1990, one must look at certain historical events of the 1970s and the 1980s in the disability rights struggle. First and foremost has been the ability and desire of diverse disabled individuals at all levels to work together, formally and informally, towards the common goals of full participation in American society for all people with disabilities. This strong desire for full participation--and the righteousness of this high ideal--is undeniable, and is the very fabric of the freedom and opportunity available to all citizens of the United States.
This desire for full participation in American society led to the passage of the Rehabilitation Act of 1973 and the Education For All Handicapped Children Act of 1974 (renamed the Individuals with Disabilities Education Act). The former law, among other initiatives, prohibited discrimination on the basis of disability in local programs and activities benefitting from federal financial assistance; its enforcement has resulted in improved program accessibility for disabled persons to health care, social services, recreation, housing, transportation, etc. Perhaps most importantly, the 1973 Rehabilitation Act began to open educational opportunities to disabled persons at all levels. The Individuals with Disabilities Education Act went further, requiring the mainstreaming of disabled students into regular classrooms if appropriate, and the establishment of individualized educational programs for students with disabilities.
Despite these important full participation initiatives in the 1970s, an important poll of people with disabilities conducted in 1985 by the highly regarded Louis Harris Company proved that the common thread of disability in America is unemployment. The Harris Poll established that two-thirds (67%) of all Americans with disabilities between the ages of 16 and 24 are unemployed. Further, only one in four (25%) are employed full-time. In many ways, the Harris Poll results confirmed what many Americans already knew from the 1980 census: non-disabled men participated in the labor force at a rate of 88%, while only 42% of disabled men were in the labor force; non-disabled women participated in the labor force at a rate of 64%, while only 24% of disabled women were in the labor force. Several other studies conducted during the 1980s indicate a steady growth from year to year in the numbers of disabled persons ready for employment and entering the labor force.
The basis for the Americans With Disabilities Act of 1990 is that during the past two decades, educational and vocational training opportunities for individuals with disabilities have greatly improved, while employment opportunities in the private sector and access to places of public accommodation including public and privately-operated transportation services, have not improved. Enforcement of the ADA in the years ahead should enable disabled individuals to realize the heretofore elusive goal of full participation in American society.
Key Employment Provisions
Beginning July 26, 1992, employers with 25 or more employees are prohibited from discriminating against qualified individuals with a disability in all of the following areas:
- job application procedures;
- hiring, advancement or discharge of employees;
- employee compensation;
- job training;
- other terms, conditions and privileges of employment.
Beginning July 26, 1994, the prohibition of discrimination in employment against qualified individuals with disabilities is expanded to cover employers with 15 or more employees.
In addition to employers, the prohibition of discrimination in employment covers employment agencies, labor organizations and joint labor-management committees. Types or forms of prohibited discrimination in employment include:
- segregating or classifying an applicant or employee in a way that adversely
affects employment opportunities because of the individual's disability;
- participating in a contractual arrangement that has the effect of discrimination
against the applicant or employee;
- using methods of administration that have the effect of discrimination,
or which perpetuate the discrimination of others;
- discrimination based on a qualified individual's relationship or association
with another individual with a known disability;
- using tests or other selection criteria which tend to screen out an individual
or a class of individuals with disabilities;
- failure to select and administer tests which accurately reflect the skills
and aptitude of an applicant;
- denying employment solely on the basis of the need to make "reasonable
accommodation" to the disability of a qualified applicant;
- not making "reasonable accommodation" to the disability of the
qualified employee, unless such accommodation would impose an "undue
hardship" on the employer.
Making "reasonable accommodation" to the disability of a qualified applicant or employee is generally regarded as a key to the successful employment of persons with severe disabling conditions. The ADA defines "reasonable accommodation" as efforts which may include:
- making existing facilities used by employees accessible to disabled individuals;
- job restructuring;
- part-time or modified work hours;
- reassignment to a vacant position;
- acquisition or modification of equipment or devices;
- appropriate adjustment or modifications of examinations, training materials or policies;
- the provision of qualified readers or interpreters;
- other similar accommodations for individuals with disabilities.
"Undue hardship" means an action requiring significant difficulty or expense, and the ADA includes a number of factors for consideration in determining if a "reasonable accommodation" actually constitutes an "undue hardship" on the employer, such as the nature and cost of the accommodation, the financial resources of the employer, the impact of such accommodations on the financial resources of the employer, or other factors.
The practice of providing "reasonable accommodation" to the disability of a qualified applicant or employe is not new in the ADA. Since the 1970s, "reasonable accommodation" has been required in regulations of the Equal Employment Opportunity Commission, the Office of Federal Contract Compliance Programs, and the Department of Justice to implement rules for non-discrimination in employment from sections 501, 503 and 504, respectively, of the Rehabilitation Act of 1973.
Data from several studies conducted by federal government agencies indicate, first, that only 22% of employees with disabilities need "accommodations" at the worksite at all. A second study detailed the average costs of "accommodations" as follows:
- No cost to employee 31%
- Between $1 and $50 19%
- Between $50 and $500 19%
- Between $500 and $1000 19%
- Between $1000 and $5000 11%
- More than $5000 1%
Less than one quarter of employees with disabilities need "accommodations," and nearly 70% of such "accommodations" cost less than $500 per disabled employee. Additionally, if the "accommodation" involves removing barriers to a disabled employee or applicant at an existing place of business, the employer may be eligible for a tax credit of up to $5,000 per taxable year for such barrier removal (see pages 11-12 for more details).
Another form of discrimination in employment which the ADA prohibits is pre-employment medical inquiries. Pre-employment medical examinations and disability inquiries are prohibited. However, an employer may require a medical examination after an offer of employment has been made if all entering employees are subject to such examination regardless of disability; and employers may require employees to undergo medical exams or make inquiries as to the disability of employees if such examination or inquiry is shown to be job-related. Voluntary medical examinations and medical histories, conducted as part of an employee health program, are acceptable under the ADA.
The ADA specifically states that a qualified individual with a disability shall not include any employee or applicant who is currently engaging in the illegal use of drugs. Protection is provided, however, to those who have successfully completed a drug rehabilitation program, or who are currently enrolled in such programs. Employers may utilize drug testing to ensure that individuals who have completed or are enrolled in rehabilitation programs remain drug free. The ADA provides additional authority to employers to prohibit the use of drugs and alcohol at the workplace, to hold employees abusing drugs or alcohol to the same job performance criteria as other employees, and to require employees to comply with other federal regulations for certain industries concerning drug and alcohol abuse.
The Equal Employment Opportunity Commission has issued regulations implementing the act's employment provisions. Finally, the ADA requires coordination among federal agencies involved in implementing employment discrimination statutes, to avoid duplication of efforts and to encourage consistent standards in their enforcement.
Major Provisions Concerning Public Services
Including Public Transportation
Taken together, Title II of the ADA, which prohibits discrimination in public services including public transportation, and Title III, which prohibits discrimination in public accommodations operated by private entities, provide protection from discrimination to individuals with disabilities in the same full range of facilities available to the public at large. With few exceptions, enforcement of the ADA will make almost every community facility and service now available to the able-bodied public equally available to individuals with disabilities.
Concerning public services, which include state or local governments, any instrumentality of such government, and Amtrak, such public service providers are prohibited from discriminating against individuals with disabilities. The effective date of this section is January 26, 1992. The Department of Justice has issued regulations to implement the public service provisions regarding prohibition of discrimination, and these rules adopt the minimum design standards required in the ADA and developed by the federal Access Board. While many public entities have improved accessibility to individuals with disabilities in recent years because they are federal fund recipients and required to to so by Section 504 of the Rehabilitation Act, this important section of the ADA broadens the coverage of public services to include any state or local government, or instrumentality thereof, whether or not they receive federal financial assistance.
Public Transportation
Effective August 26, 1990, any public entity which operates a fixed route system must purchase buses which are accessible to individuals with disabilities, including wheelchair users. This requirement also applies to the purchase or lease of used vehicles. They, too, must be accessible to individuals with disabilities. It is also a discriminatory practice to remanufacture existing fixed route vehicles without accessibility, if the remanufactured vehicle has its usable life extended for five years or more. This provision also became effective on August 26, 1990. The ADA does provide an exception from fixed route vehicle accessibility for vehicles of an historic character.
Requirements for public transportation entities go beyond the purchase of accessible fixed route vehicles. It shall also be a discriminatory practice of public entities which operate fixed route services to fail to provide complimentary paratransit or other special transportation services in their geographic area. The requirement for paratransit service in the ADA also called for the development of a plan for this paratransit system, including implementation, by each public entity providing public transportation by July 26, 1993. The development of the plan also had public participation, including public hearings, involving groups and individuals with disabilities.
All new facilities constructed by a public entity providing public transportation must be built in an accessible fashion. Alterations to existing facilities operated by the public entity must also be rendered accessible. For rapid rail and light rail systems, "key" stations must be made accessible by July 26, 1993 or within 30 years of the effective date of the ADA if the alterations involve extraordinarily expensive structural changes. If, under these circumstances, a 30-year compliance period is allowed by the Secretary of Transportation, two-thirds of the "key" stations must be accessible within 20 years. "Key" stations in rapid and light rail systems are those defined by criteria established through regulation by the Secretary of Transportation. By July 26, 1995, for light rail and rapid rail systems, at least one car per train must be accessible to individuals with disabilities, including wheelchair users. Trains of an historic character may be exempted from this provision. This same "one car per train" rule applies to trains operated by public entities providing commuter rail service and Amtrak, with the same effective date of July 26, 1995.
All new rail passenger car purchases by Amtrak must be accessible to individuals with disabilities including, for single-level passenger coaches, the ability to park and remain in one's wheelchair and the ability to use wheelchair-accessible public restrooms on the train. Single-level dining cars and bi-level dining cars are exempted from this requirement. Within five years, on each Amtrak passenger train, there must be an area to park, secure and remain in a wheelchair as well as an area to store and fold a wheelchair, after transfer to a seat. The number of such securement/storage areas must be equal to one-half the number of coaches on the train; and within 10 years, they must be available on passenger coaches equal to the number of coaches on the train itself. Accessibility requirements are also included in the ADA concerning Amtrak for single-level dining cars. For commuter rail systems, effective August 26, 1990, all new rail passenger cars purchased must be accessible. The ADA also deems it discrimination if used railcars are purchased and not accessible, and if remanufactured railcars with a useful life of 10 or more years are purchased and not accessible. For commuter rail stations, any new station constructed must be accessible and alterations of existing stations must be made accessible to the maximum extend feasible. "Key" stations in commuter rail systems, including high ridership, transfer and feeder stations, must also be rendered accessible. For Amtrak stations, all must be made accessible within a 20-year period; for commuter rail systems, "key" stations must be made accessible within a three-year period but this deadline can be extended to 20 years by the Secretary of Transportation. Commuter rail authorities submitted plans to the Secretary of Transportation designating "key" stations in their systems, and the plans involved consultation with individual organizations.
Richard Alexander is a specialist in personal injury litigation with 30 years in-depth experience. Emphasizing working relationships with clients has led to an exceptional record of success. He has served as a member of the Board of Governors of The State Bar of California, President of the Santa Clara County Bar Association and the Board of Governors of Consumer Attorneys of California. He is a founding member of the National Association of Consumer Advocates, and heads Alexander Hawes, LLP.
Alexander Hawes, LLP is a California law firm that specializes in personal injury, wrongful death, and financial losses caused by negligence, defective products, toxic chemicals, corporate misconduct or insurance fraud on behalf of consumers, small investors, injured workers and small businesses. In addition to individual cases the firm prosecutes class actions for large groups of individuals who have suffered financial loss as a result of corporate fraud, defective consumer products, and environmental pollution. The firm holds Martindale-Hubbell's highest rating and is recognized in the List of Preeminent Law Firms in the U. S.
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