Americans with Disabilities Act – Background, Key Provisions & Recent Amendments

• By: Staff Editor
• Date: August 01, 2010

Background:

The Americans with Disabilities Act (ADA) is a landmark civil rights law that prohibits private employers, state and local governments, employment agencies and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment.

The ADA opened up public services and employment opportunities to around 43 million disabled Americans. It was passed and signed into law in 1990 and its regulations took effect on January 26, 1992.

The ADA is divided into the following five titles:

Key Provisions:

Definition of Disability:

The act defines a disabled individual as one who:

• Has a physical or mental impairment that substantially limits one or more major life activities;
• Has a record of such an impairment; or
• Is regarded as having such an impairment.

Qualified Employee with a Disability - Eligibility:

A qualified employee or applicant with a disability is an individual who, with or without reasonable accommodation, can perform the essential functions of the job in question. Reasonable accommodation may include, but is not limited to:

• Making existing facilities used by employees readily accessible to and usable by persons with disabilities.
• Job restructuring, modifying work schedules, reassignment to a vacant position;
• Acquiring or modifying equipment or devices, adjusting or modifying examinations, training materials, or policies, and providing qualified readers or interpreters.

Employment:

The first title of the ADA covers employment related regulatory requirements. The highlights of these include:

• The ADA prohibits discrimination in employment against people with disabilities.
• It requires employers to make reasonable accommodations to the known physical or mental limitations of a qualified applicant or employee, unless such accommodation would impose an undue hardship on the employer.
• Reasonable accommodations include such actions as making worksites accessible, modifying existing equipment, providing new devices, modifying work schedules, restructuring jobs, and providing readers or interpreters.
• Prohibits the use of employment tests and other selection criteria that screen out, or tend to screen out, individuals with disabilities, unless such tests or criteria are shown to be job-related and consistent with business necessity.
• Bans the use of pre-employment medical examinations or inquiries to determine if an applicant has a disability.
• Permits the use of a medical examination after a job offer has been made if the results are kept confidential; all persons offered employment in the same job category are required to take them; and the results are not used to discriminate.
• Permits employers to inquire about the ability of a job applicant or employee to perform job-related functions at any time.

Title I of the ADA is enforced by the Equal Employment Opportunity Commission (EEOC).

State and Local Governments:

The second title of the ADA deals with state and local governments obligations to the disabled. The highlights of this title’s requirements include:

• Services and programs of local and State governments, as well as other non-Federal government agencies, should operate their programs so that when viewed in their entirety they are readily accessible to and usable by individuals with disabilities.
• Entities covered by Title II do not need to remove physical barriers, such as stairs, in all existing buildings, as long as they make their programs accessible to individuals who are unable to use an inaccessible existing facility.
• These entities must provide appropriate auxiliary aids to ensure that communications with individuals with hearing, vision, or speech impairments are as effective as communications with others, unless an undue burden or fundamental alteration would result.
• Covered entities may impose safety requirements that are necessary for the safe operation of a Title II program if they are based on actual risks and not on mere speculation, stereotypes, or generalizations about individuals with disabilities.

Public Transport:

Title II of the ADA also covers requirements for public transport. The highlights include:

• The title ensures that people with disabilities have access to existing public transportation services.
• All new buses must be accessible.
• Transit authorities must provide supplementary paratransit services or other special transportation services for individuals with disabilities who cannot use fixed-route bus services, unless this would present an undue burden.

Public Accommodation:

According to the ADA, public accommodations include the broad range of privately owned entities that affect commerce, including sales, rental, and service establishments; private educational institutions; recreational facilities; and social service centers.

According to Title III of the Act, when providing goods and services, public accommodation:

• May not use eligibility requirements that exclude or segregate individuals with disabilities, unless the requirements are "necessary" for the operation of the public accommodation.
• Has to make reasonable modifications to policies, practices, and procedures, unless those modifications would fundamentally alter the nature of the services provided by the public accommodation.
• Provide auxiliary aids necessary to enable persons who have visual, hearing, or sensory impairments to participate in the program, but only if their provision will not result in an undue burden on the business.
• Must remove physical barriers in existing facilities when it is "readily achievable" to do so (i.e., when it can be accomplished easily and without much expense). Tax write-offs are available to minimize the costs associated with the removal of barriers in existing buildings or in providing auxiliary aids, including interpreters for the deaf.
• Must comply with ADA Accessibility Guidelines (ADAAG) in construction of new building facilities and alterations of existing facilities so they are accessible to people with disabilities.

Telecommunications:

Title IV of the ADA includes the following requirements regarding telecommunications:

• Telephone companies should provide telecommunications relay services that allow individuals with hearing impairments to communicate using a Tele Typewriter (TTY) or other non-voice device.
• Relay services to be accessed by dialing 7-1-1.
• All television public service announcements (PSAs) produced by or funded in whole or in part by the federal government should include closed captioning.

Recent Amendments – the ADA Amendments Act (ADAAA) 2008

Ever since the ADA was enacted, a number of Supreme Court decisions in legal cases involving the act were considered by Congress members as limiting the rights of disabled persons. The ADAAA reversed those decisions and made the act more equitable towards the disabled.

The highlights of the ADAAA include:

• Directs EEOC to modify that section of its regulations defining the term "substantially limits"
• Expands the definition of "major life activities" by including two non-exhaustive lists:
  • The first list includes activities that the EEOC has recognized and activities that EEOC has not specifically recognized
  • The second list includes major bodily functions
• States that mitigating measures other than "ordinary eyeglasses or contact lenses" shall not be considered in assessing whether an individual has a disability
• Considers an impairment a disability if it limits a major life activity when active
• Changes the definition of "regarded as" so that it no longer requires a showing that the employer perceived the individual to be substantially limited in a major life activity, and instead says that an applicant or employee is "regarded as" disabled if he or she is subject to an action prohibited by the ADA (e.g., failure to hire or termination) based on an impairment that is not transitory and minor

Grants that individuals covered only under the "regarded as" prong are not entitled to reasonable accommodation

Steps and Actions for Employers under the ADAAA


 

Noncompliance and Penalties

The ADA provide legal recourse for employees whose rights under the ADA have been violated. These include:

• Recovery of back wages
• Reimbursement of attorney fees

Federal government contractors’ or subcontractors’ employees can file disability discrimination complaints with the Office of Federal Contract Compliance Programs (OFCCP), under Section 503 of the Rehabilitation Act.

Additional Resources:

• Read the Americans with Disabilities Act (ADA) with ADAAA amendments incorporated in full here.
• Need to check if you are compliant with the regulatory requirements of the ADA or ADAAA? Then attend any of the following ComplianceOnline webinars:
  • Understanding the Final Regulations under the Americans with Disabilities Amendments Act
  • The Alphabet Soup Just Got Trickier: When the ADA/FMLA/GINA/COBRA/Workers’ Comp All Come Together
  • Pregnancy in the Workplace: Strategies to Protect Your Organization from Pregnancy Discrimination Claims
  • Risk Management for Human Resources
  • The Pros and Cons of Alternative Working Arrangements and Regulatory Requirements in Implementing Such Programs
  • Full Day Virtual Seminar: First-line Supervisors’ Human Resource Responsibilities