AFB ADA SOLUTION GUIDE AN OVERVIEW OF THE AMERICANS WITH DISABILITIES ACT INTRODUCTION The Americans with Disabilities Act (ADA) is a landmark piece of civil rights legislation which was signed into law by President George Bush on July 26, 1990. It is based, in part, on provisions contained in existing law: namely, the Civil Rights Act of 1964 and the Rehabilitation Act of 1973. The legal interpretation of these laws applies to the ADA to the extent that they are consistent with the ADA. Sec. 504 of the Rehabilitation Act, which was enacted into law in 1973, prohibits discrimination on the basis of disability by recipients of federal funds. Thus, court cases decided under Sec. 504 of the Rehabilitation Act that define what constitutes a "reasonable accommodation" are useful in determining the meaning of "reasonable accommodation" under the ADA. The ADA, for the most part, is worded in very general terms. The implementation of the ADA relies heavily on more than 700 pages of regulations issued by four agencies of the federal government. In addition, the Department of Justice and the Equal Employment Opportunity Commission have published Technical Assistance Manuals which further explain the regulations and provide guidance about how the ADA will be interpreted by these enforcement agencies. AFB's ADA Solution Guide "Regulatory and Technical Assistance Documents" provides information about obtaining these documents. The importance of the ADA is that, for the first time, disability civil rights discrimination has become a part of the federal public policy agenda. Other rights and remedies addressing discrimination on the basis of disability (including a more generous award of monetary damages) may exist under state or local laws, and such laws may provide broader coverage than available under the ADA. For example, state law may cover employers having fewer than 15 employees. This may be important since the ADA does not cover these small employers. In addition, Sec. 501 of the Rehabilitation Act continues to apply to the conduct of federal agencies' own activities (such as personnel matters), while Sec. 504 of the Rehabilitation Act continues to apply to federally-assisted programs or activities. The ADA itself does not apply to the federal government or to religious organizations. AFB ADA Solution Guide ADA Overview Page 2 In addition to its wide reaching impact, the ADA is significant from a "psychological/empowerment" point of view. It makes "disability discrimination" something society as a whole must now address. THE ADA CONSISTS OF FIVE TITLES: Title I: Employment Title II: State and local government services, regardless of the receipt of federal funds. (This also includes public transportation services.) Title III:Public accommodations and commercial facilities, including hotels and retail establishments, corporate offices, banks, and transportation services provided by private entities not primarily engaged in the transportation of people, e.g., hotel airport shuttle services operated for the convenience of hotel guests. Title IV: Telecommunications, e.g., telecommunications relay services operated to serve the telecommunications needs of people who are hard of hearing, deaf, deaf-blind, or speech impaired. Title V: Miscellaneous provisions including attorneys' fees. WHO IS COVERED BY THE ADA? An individual with a disability is someone who has a physical or mental impairment that substantially limits one or more major life activities. Major life activities include seeing, walking, hearing, speaking, breathing, etc. In addition, an individual can also be covered under the ADA who has a record of such an impairment or is regarded as having such an impairment. Thus, the ADA covers not only severe disabilities like blindness or deafness, but also covers individuals who have recovered from cancer (having a record of such an impairment) or those who are disfigured to such an extent that they are regarded as having a substantially limiting impairment. AFB ADA Solution Guide ADA Overview Page 3 WHAT ARE THE KEY POINTS IN EACH TITLE OF THE ACT? Title I: Employment Effective: July 26, 1992 (Employers with 25+ employees) July 26, 1994 (Employers with 15+ employees) "No covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, hiring, advancement, discharge, employee compensation, job training, or other terms, conditions and privileges of employment." A person having a complaint may optionally file a private suit in federal court. Remedies include an injunction, reinstatement, back pay, and in cases of intentional discrimination, up to $300,000 in damages depending upon the size of the employer. Reimbursement of attorneys' reasonable fees is also available. IMPORTANT DEFINITIONS AND CONCEPTS IN TITLE I INCLUDE: Qualified Individuals with A Disability Qualified individuals with a disability are those persons who can perform the essential functions of the job with or without reasonable accommodation. The employee with a disability must be qualified in terms of education and experience to do the job, and the employer is free to set production standards, so long as all employees of the same class are expected to meet that standard. Reasonable Accommodations Reasonable accommodations are changes in the work environment or in the way things are usually done which result in an equal employment opportunity for the employee or job applicant. Reasonable accommodations include, but are not limited to, such things as taped texts, qualified readers and interpreters, braille and large print materials, modification or acquisition of equipment, reassignment, adjustment of work schedules, etc. Reasonable accommodations are determined on a case by case basis, and must be effective to afford the applicant or employee an equal employment opportunity. Thus, braille and/or interpreters may be effective accommodations for an employee who is deaf-blind. Taped texts and/or readers would be effective accommodations for an employee who is blind performing the same job but does not have hearing loss. AFB ADA Solution Guide ADA Overview Page 4 The employer can choose among several accommodations, and may choose the least expensive accommodation, so long as it is effective. Undue Hardship Undue hardship is a defense for noncompliance with ADA's reasonable accommodation requirement. Establishing undue hardship involves analysis of several factors including the size of the employer, number of employees, number of work sites, etc. Direct Threat A person who poses a "direct threat" to the health or safety of himself/herself or others is not considered a "qualified individual with a disability" under ADA and thus is not protected by the ADA. "Direct threat" must be determined on a case by case basis using competent medical or other evidence. The defense may not be based upon stereotype, fear, or ignorance. Fundamental Alteration An entity covered by the ADA is not required to provide reasonable accommodations to job applicants or employees if doing so results in a fundamental alteration in the manner in which an organization conducts its business. For example, an employer whose cleaning service firm provides night cleaning services only would not be required to hire an applicant with visual impairments who requests the accommodation of working during daylight hours in order to use public transportation which serves the community between 5 AM and 7 PM to travel to and from work. AFB's ADA Solution Module "Employment For Persons With Visual Impairments" reviews Title I in detail. AFB ADA Solution Guide ADA Overview Page 5 Title II: State/Local Government Services and Public Transportation Effective: January 26, 1992; effective dates for transportation provisions vary. This title extends nondiscrimination requirements to all services, programs, and activities of state/local government entities, whether or not they receive federal funds. Obligations and remedies for violation of Title II are patterned after the obligations and remedies under Sec. 504 of the Rehabilitation Act. This may include damages for intentional discrimination and injunctive relief. Employment provisions of Title I are incorporated by reference and apply to entities covered under Title II. Because government is to be a model for nondiscrimination and accessibility, the defenses for noncompliance under Title II are limited as compared to defenses for noncompliance with Titles I & III. A "defense" is a justification, such as undue burden, which a covered entity may assert as the reason for its failure to comply with the law. Title II also applies to providers of public transportation: both intracity and intercity bus and rail transportation. Airlines are not covered by the ADA; however, airport terminals are covered under the Title II regulations issued by the U.S. Department of Transportation for transit facilities. Sec. 504 of the Rehabilitation Act continues to apply to institutions receiving federal funds and to agencies of the federal government. Title II is administered by the U.S. Department of Justice and the U.S. Department of Transportation. Persons having a complaint may file either with one of eight designated administrative agencies or directly with the Departments of Justice or Transportation. Complaints may also be filed directly in federal court. AFB ADA Solution Guide ADA Overview Page 6 Title III: Public Accommodations Effective: January 26, 1992 This section guarantees that "no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, accommodations of any place of public accommodation by any person who owns, leases, or operates a place of public accommodation." Public accommodations are broadly defined to include almost any entity with which one does business, or visits (including retail stores, banks, insurance offices, stadiums, theaters, hospitals, offices of attorneys or health care providers, etc.). By contrast "commercial facilities" are mercantile establishments which affect commerce (including office buildings, warehouses, and factories). The requirements of Title III apply to commercial facilities only in cases of new construction or alteration of existing facilities. However, a commercial facility such as an office building may assume additional Title III requirements as the landlord of a place of public accommodation which rents space in the building. AFB's ADA Solution Module "Accessible Facility Design For Persons Who Are Visually Impaired" provides additional details. IMPORTANT DEFINITIONS AND CONCEPTS IN TITLE III INCLUDE: Auxiliary Aids and Services Auxiliary aids and services, which are accommodations made to provide access to printed or displayed information, must be provided under Title III. Like the concept of "reasonable accommodation" in the employment context (Title I), auxiliary aids and services must effectively remove communications barriers, and are judged on a case by case basis. The defenses of undue burden and fundamental alteration apply, and involve the same analysis used under ADA Title I. Examples of auxiliary aids and services include, but are not limited to, qualified readers or interpreters, taped texts, braille and large print materials, amplified handsets, etc. Designing for Accessibility:The ADA Accessibility Guidelines (Adaag) ADAAG, an appendix to ADA Title III, includes minimum standards for accessible design of buildings and adjacent spaces. These standards may be very specific (such as doorway width requirements to insure access by wheelchair users) or may be performance standards (requiring automatic teller machines to be accessible to blind or visually impaired persons). In addition, the ADAAG includes scoping provisions which specify requirements for the number and location of accessible features required in a building or facility. Examples of scoping provisions are the number of TDDs (telecommunication devices for the deaf) or accessible entrances which must be AFB ADA Solution Guide ADA Overview Page 7 provided in new or altered facilities. The ADAAG standards address design elements to remove both architectural and structural communication barriers. Of particular interest for removing communication barriers are the requirements for braille and raised character signage in new and existing facilities, and for tactile warnings in certain situations. Compliance with the ADAAG is required in all new construction unless it is structurally impractical to do so. The ADAAG is also required in most existing facilities if its requirements are "readily achievable," and may also be required to a greater extent when alterations or renovations affecting the useability of a facility are made. AFB's ADA Solution Module "Accessible Facility Design For Persons Who Are Visually Impaired" provides detailed information. It Is Unlawful Under Ada Title III For A Place Of Public Accommodation To: Use eligibility criteria that screen out individuals with a disability, e.g., prohibiting a blind person from riding a roller coaster, unless accompanied by a sighted guide (unless the amusement park can prove direct threat of harm or injury). Fail to provide auxiliary aids or services, e.g., fail to read price information to a retail store customer who is blind, or fail to respond to a customer who is deaf-blind and communicates a request through note cards or other means. Fail to prevent exclusion, segregation or different treatment, e.g., require a person who is blind to take a "special" museum tour when the individual prefers to take the regular tour, or requiring a person who is deaf-blind to sit in a secluded corner of a restaurant because the restaurateur fears the reaction of other customers. Fail to remove architectural and structural communication barriers, when it is "readily achievable" to remove such barriers, e.g., fail to provide braille and raised character elevator markings in existing facilities, unless installation of such signage is particularly difficult or expensive. Fail to modify practices or procedures which result in a denial of services, e.g., require a person who is blind to produce a driver's license as the sole means of identification for cashing a check. Fail to use readily achievable alternative methods when barriers cannot be removed, e.g., provide delivery service to a person who uses a wheelchair when it is not readily achievable to make the store's existing premises accessible to a wheelchair