Americans with Disabilities Act
The Americans with Disabilities Act (ADA) was a bill passed by the United States Congress signed into law by President George Bush on July 26, 1990.
The purpose of the ADA was to make society more accessible to people with disabilities. The ADA applies to qualified individuals with disabilities who (1) have physical or mental impairments that substantially limit one or more major life activities; (2) have a record of such impairments; or (3) are regarded as having such impairments. In addition, the ADA protects persons from discrimination based on an association or relationship with an individual with a disability.
A qualified individual with a disability is defined as a person who meets legitimate skill, experience, education, or other requirements for a position, and who is able to perform the essential functions of the position with or without reasonable accommodation. Requiring that an individual be capable of performing essential functions assures that such an individual will not be disqualified simply due to an inability to perform marginal job functions. If the individual is qualified to perform essential job functions, except for limitations caused by a disability, the employer must consider whether the individual could perform these functions with a reasonable accommodation. A written job description, prepared prior to advertising or interviewing applicants for a job, may be considered evidence of the job's essential functions.
Examples of major life activities may include seeing, hearing, speaking, walking, breathing, performing manual tasks, learning, self-care, and working. The ADA covers, for instance, individuals with epilepsy, paralysis, HIV, AIDS, substantial hearing or vision impairment, mental retardation, or specific learning disabilities. It also covers the individual with a record of a disability— for example, a person who has recovered from cancer or mental illness.
The ADA protects individuals who are regarded as having a substantially limiting impairment, even though they may not have such an impairment. For example, the ADA protects a qualified individual with a physical disfigurement from being denied employment because an employer is concerned how customers or coworkers might react.
The ADA also protects individuals from company or organization actions based on assumptions that a employee/member's relationship with a person with a disability would affect his or her job performance, and from actions resulting from bias or misinformation concerning certain disabilities. For example, the ADA protects a person whose spouse has a disability from being denied employment because the employer assumes that the applicant would require excessive leave to care for the spouse. The individual who is involved in volunteer work with people who have AIDS is also protected from employment discrimination by the ADA, if such discrimination is motivated by that relationship or association.
Civil rights protections similar to other legislation that provides protection on the basis of race, color, sex, national origin, age, and religion are also provided by the ADA; it also guarantees equal opportunity for individuals with disabilities in public accommodations, employment, transportation, government services, and telecommunications. Discrimination in all employment practices, including job application procedures, hiring, firing, advancement, compensation, training, recruitment, advertising, tenure, layoff, leave, fringe benefits, and all other employment-related activities, is controlled by the ADA.
With regard to both private and public sector employment, including state and local government services, companies with 15 or more employees are also subject to the ADA. Specifically, businesses must accommodate employees or customers with disabilities unless doing so represents an undue hardship or a direct threat to the health or safety of others.
Although the ADA is intended to protect those with disabilities from discrimination, employers are not expected to give preference to a qualified applicant with a disability over other applicants. An employer remains free to select the most qualified applicant available and to make decisions based on reasons unrelated to a disability.
Financial assistance for employers
To enable smaller employers to make reasonable accommodations, a special tax credit is available. A tax credit of up to $5,000 per year for accommodations, made to comply with the ADA, may be taken by an eligible small business. A full tax deduction of up to $15,000 per year is available to any business for expenses incurred during the removal of qualified architectural or transportation barriers. Covered expenses include removing barriers created by steps, narrow doors, inaccessible parking spaces, restroom facilities, and transportation vehicles.
|U.S. government agencies providing assistance with Americans with Disabilities Act|
|For questions about:||Consult these agencies:||Contact information:|
|E=has enforcement authority; G=issues guidelines; P=administers programs relevant to successful implementation of the Act; R=issues regulations; TA=provides technical assistance on how to comply.|
|SOURCE: Rothstein, J.M., S.H. Roy, and S.L. Wolf. The Rehabilitation Specialist's Handbook. 2nd ed. Philadelphia: F.A. Davis Co., 1998.|
|Employment (Title I)||Equal Employment Opportunity Commission (R,TA,E)||1801 L Street NW, Washington, DC 20554.|
|National Institute on Disability and Rehabilitation Research, Dept. of Education (TA)||400 Maryland Ave. SW, Washington, DC 20202-2572|
|President's Committee on Employment of People with Disabilities (TA)||1331 F Street NW, Third Floor, Washington, DC 20004|
|Small Business Administration, Office of Advocacy, Office of Economic Research (TA)||409 Third Street NW, Fifth Floor, Washington, DC 20416|
|Social Security Administration, Office of Disability (P)||Room 545, Altimeyer Building, 6401 Security Blvd., Baltimore, MD 21235|
|Public services (Title II)||Office on the AD Act, Civil Rights Division, Dept. of Justice (R,TA,E)||P.O. Box 66118, Washington, DC 20035-6118|
|Dept. of Transportation (R,TA,E)||400 Seventh Street SW, Room 10424, Washington, DC 20590|
|Public accomodations (Title III)||Architectural and Transportation Barriers Compliance Board (G,TA)||1331 F Street NW, Suite 1000, Washington, DC 20004-1111|
|Office on the AD Act, Civil Rights Division, Dept. of Justice (R,TA,E)||PO Box 66118, Washington, DC 20035-6118|
|Dept. of Transportation (R,TA,E)||400 Seventh Street SW, Room 10424, Washington, DC 20590|
|Telecommunications (Title IV)||Federal Communications Commission (R,TA,E)||1919 M Street NW, Washington, DC 20554|
|Accessibility||Architectural and Transportation Barriers Compliance Board (G,TA)||1331 F Street NW, Suite 1000, Washington, DC 20004-1111|
|Rehabilitation and independent living services||National Institute on Disability and Rehabilitation Research, Dept. of Education (P)||400 Maryland Ave. SW, Washington, DC 20202-2572|
|Tax law provisions||Internal Revenue Service, Dept. of Treasury (TA)||1111 Constitution Ave., Ben Franklin Station, Washington, DC 20224|
The ADA's employment provisions are enforced under the same procedures now applicable to race, color, sex, national origin, and religious discrimination under title VII of the Civil Rights Act of 1964 and the Civil Rights Act of 1991. Available remedies include hiring, reinstatement, promotion, back pay, front pay, restored benefits, reasonable accommodation, attorneys' fees, expert witness fees, and court costs. Compensatory and punitive damages also may be available in cases of intentional discrimination or where an employer fails to make a good faith effort to provide a reasonable accommodation.
Despite the ADA's laudable intentions, it is not without critics. It is pointed out by those who find fault with the ADA that its definitions are too broad, vague, or illdefined. Others suggest that unnecessary litigation has been spawned by the ADA, which has not been effective in moving those with disabilities from welfare to the workforce, and requires employers to shoulder burdensome costs to accommodate individuals with disabilities despite available tax credits available from the federal government.
American Disabilities Act defenders point out an example of a recent study reporting that companies' insurance costs rarely rise because of hiring individuals with disabilities. Obvious benefits generated by the ADA are also observed by supporters. Among these benefits are increased attention to pervasive discrimination against and widespread unemployment of people with disabilities, and their willingness and potential to contribute to society. Stereotypes about people with disabilities have been revealed by studies. It is clear that people with disabilities are hired less and fired more than other employees.
According to the ADA, employers may conduct employee medical examinations when there is evidence of a job performance or safety problem, when it is required by federal law, when it is necessary to determine an individual's fitness to perform a particular job, or when voluntary examinations are part of employee health programs. However, information from medical examinations must be kept confidential. According to the ADA,
testing for illegal drug use is not considered part of a medical examination.
An employer may not ask or require an applicant to take a medical examination before extending a job offer. Furthermore, pre-employment inquiries about a disability or the nature or severity of a disability cannot be made by an employer. However, questions may be asked by the employer about the individual's ability to perform specific job functions. In addition, an individual with a disability may be asked by an employer to describe or demonstrate how he or she would perform such functions.
An employer may qualify a job offer based on a satisfactory post-offer medical examination or medical inquiry, provided this is required of all employees in the same job category. A post-offer examination or inquiry does not have to be job related.
In the event that a post-offer medical examination or inquiry reveals a disability and the individual is not hired, the reason for the rejection must be job related. An employer must show that reasonable accommodations were not available to enable the individual to perform the essential job functions, or that such accommodations would have imposed an undue hardship. A post-offer medical examination may disqualify an individual. If the employer can demonstrate that a direct threat in the workplace—that is, that a significant risk or substantial harm to the health or safety of the individual would also pose a direct threat in the workplace—a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced below the direct threat level through reasonable accommodation. Such a disqualification must be job related and consistent with business necessity. In addition, an individual with a disability who is able to perform essential job functions may not be disqualified due to speculation that the disability may cause a risk of future injury.
A reasonable accommodation is any modification or adjustment to a job or the work environment that enables a qualified applicant or employee with a disability to participate in the application process or to perform essential job functions. A reasonable accommodation includes adjustments to assure that a qualified individual with a
Reasonable accommodation may include making existing facilities used by employees readily accessible to, and usable by, an individual with a disability. In addition, it may involve restructuring a job; modifying work schedules; acquiring or modifying equipment; providing qualified readers or interpreters; or appropriately modifying examinations, training, or other programs. Reasonable accommodation also may include reassigning a current employee to a vacant position for which he or she is qualified, if the person is unable to do the original job because of a disability even with an accommodation. However, an employer is not obligated to find a position for an applicant who is not qualified for the position sought, nor are employers required to lower quality or quantity standards as an accommodation.
Appropriate accommodation decisions must be based on the facts in each case—that is, whether the accommodation will provide an opportunity for a person with a disability to achieve the same level of performance and the potential to enjoy benefits equal to those of a person without a disability. However, the accommodation does not have to ensure equal results or provide exactly the same benefits.
An employer is only required to accommodate a known disability of a qualified applicant or employee. The requirement is typically initiated by a request from an individual with a disability. Accommodations must be made on an individual basis since the nature and extent of a disabling condition and the requirements of a job vary with each case. If the individual does not request an accommodation, the employer is not obligated to provide one except where an individual's known disability impairs the ability to know of, or effectively communicate a need for, an accommodation obvious to the employer. If an appropriate accommodation is requested by a person with a disability (but not suggested by the employer, who cannot "suggest" this), the employer and the individual should work together to identify one. There are a number of resources that provide assistance without cost.
An employer is not required to make an accommodation if it would impose an undue hardship on the employer's business. Undue hardship is defined as an "action requiring significant difficulty or expense." This includes the nature and cost of the accommodation in relation to the size, resources, nature, and structure of the employer's operation. Undue hardship is determined on an individual basis. In general, a larger employer with greater resources would be expected to make accommodations requiring greater effort or expense than a smaller employer with fewer resources.
If an accommodation represents an undue hardship, the employer must try to identify another accommodation that will not pose such a hardship. Also, if the cost of an accommodation would impose an undue hardship on the employer, the individual with a disability should be given the option of paying that portion of the cost that would constitute an undue hardship or provide the accommodation.
The employer is obligated to provide access for an individual applicant to participate in the job application process, and for an individual employee with a disability to perform the essential functions of the job, including access to a building, the work site, necessary equipment, and all facilities used by employees.
However, an employer is not required to make existing facilities accessible until an employee with a disability needs an accommodation. The employer does not have to make changes to provide access in places or facilities that will not be used by that individual for employment-related activities or benefits.
Accommodations may be needed to assure that tests or examinations measure the actual ability of an individual to perform job functions, rather than reflect limitations caused by the disability. Tests should be given to people who have sensory, speaking, or manual impairments in a manner that does not require the use of the impaired skill, unless the test is designed to measure a job-related skill.
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Clegg, R." The costly compassion of the ADA." The Public Interest (July 15, 1999).
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Goldfein, R. and S. Velazquez. "AIDS and the ADA: Protection from Perception." Trial 35 no. 10 (October 1999): 42-45.
Hall, J. and D. Hatch. "ADA May Require Reassignment to Vacant Job." Workforce 78 no. 9 (September 1999): 94.
Kazanjian, L. and S. Weinhaus. "Should Correctable Conditions Count as Disabilities Under the ADA?" Business and Health 17 no. 8 (August 1999): 47-48.
Shellenbarger, S. "A Little-Known Part of the Disabilities Act Protects Caregivers." Wall Street Journal (August 23,2000).
Van Detta, J. A. "Typhoid Mary Meets the ADA: A Case Study of the Direct Threat Standard Under the Americans
Americans with Disabilities Act Document Center. <http://janweb.icdi.wvu.edu/kinder/index.htm>.
Americans with Disabilities Act of 1990, 42 U. S. C. 12101-12213 (1990). <http://www.usdoj.gov/crt/ada/pubs/ada.txt>.
U.S. Department of Justice. Americans with Disabilities ADA Homepage. <http://www.usdoj.gov/crt/ada/adahom1.htm>.
Bill Asenjo, M.S., C.R.C.