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ADA Title I, II, and Title III

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Title: ADA Title I, II, and Title III


1
ADA Title I, II, and Title III
  • Employment and Accessibility
  • J.J. Rico, Managing Attorney
  • 520-327-9547, ext 331

2
Who Is A Qualified Individual With A Disability
  • Disability under the ADA means a physical or
    mental impairment that substantially limits one
    or more major life activities
  • QID To be protected by the ADA, a person must
    be able to prove s/he is a qualified individual
    with a disability.
  • Disability The term "disability" has a special
    meaning under the ADA.

3
ADA Amendment Act- Scope of Definition
Substantially Limits
  • No changes to definition but changes on how to
    interpret definition.
  • Now there is less demanding standard to cover
    broad range of individuals

4
Substantial limitation
  • Means that an individual is unable to perform, or
    is significantly limited in the ability to
    perform, an activity compared to an average
    person in the general population
  • Look to three factors
  • the nature and severity of the impairment
  • how long the impairment will last or is expected
    to last and
  • the permanent or long term impact or expected
    impact of the impairment

5
ADA Amendment Act Substantial Limitation
  • ADAAA rejects the Supreme Courts decision in
    Toyota v. Williams interpretation of
    substantially limits
  • Rejects that an impairment substantially
    limits a major life activity if it prevents or
    severely restricts the individual from
    performing the activity

6
Other major life activities
  • Walking
  • Running
  • Seeing
  • Hearing
  • Thinking
  • Speaking
  • Breathing
  • Eating
  • Lifting, Bending, Stooping

7
Major Bodily Functions
  • Functions of the immune system
  • Digestive
  • Bowel
  • Circulatory
  • Neurological
  • Brain

8
OLD Mitigating Measures Rule
  • Effect of Medication and Corrective Devices on
    Disability Determination
  • Sometimes, medication, corrective devices, such
    as eye glasses and hearing aids, may actually
    fully correct a medical condition or impairment.

9
NEW Mitigating Measure Rule
  • The determination of whether an impairment
    substantially limits a major life activity shall
    be made without regard to the ameliorative
    effects of mitigation measures such as
  • Medication , medical suppliesprostheticshearing
    aidsassistive technology
  • Exception is ordinary eye glasses and contact
    lenses that fully correct visual acuity

10
Four ways a Person Without a Disability is
Protected by the ADA
  • A qualified individual who has a record of a
    disability or substantially limiting impairment.
  • (An impairment that is episodic or in
    remission is a disability if it substantially
    limits a major life activity when active)
  • A qualified individual who is regarded as having
    such an impairment. (Applies if subjected to an
    action prohibited by Act)
  • An individual who has a known relationship or
    association with an individual with a disability.
  • An individual who has opposed a discriminatory
    practice. Retaliation.

11
ADA Amendment Act Regarded As Having a
Disability
  • The ADAA provides that an individual can
    establish coverage under the regarded as prong
    by showing that he or she was subjected to an
    action prohibited by the ADA.

12
Who is a Covered Employer
  • Employer must have at least 15 or more employees
  • Includes a location or facility of a business
    with less than 15 employees whose total number of
    employees for the company in all locations and
    facilities combined equals 15 or more.
  • Other laws may apply to persons with disabilities
    who are employed by smaller businesses.

13
The ADA also applies to state and local
governments.
  • Includes all state and local governmental
    agencies, departments and entities regardless of
    their size or number of employees.
  • Examples of state and local employers include
    public schools, public universities, police and
    fire departments, public libraries, museums,
    public parks and recreation facilities, and
    social welfare offices.

14
Federal Government Not Covered by the ADA
  • Federal employers are covered by the
    Rehabilitation Act of 1973. However, the
    protections available under the ADA are also
    available under the Rehabilitation Act. The main
    difference between these two laws are the
    administrative procedures that an employee or
    applicant must exhaust to later be able to file a
    lawsuit.

15
Being Qualified Under the ADASkills, Experience
and Education
  • A person with a disability must meet the minimum
    job qualifications for the job. Job
    qualifications include but are not limited to the
    skill, experience, education, medical, safety,
    physical and other requirements a covered
    employer sets as requirements for a job.

16
Qualifications
  • Must not screen or tend to screen out people with
    disabilities be job-related
  • Must be job-related
  • Must be a business necessity
  • Performance can not be accomplished by a
    reasonable accommodation
  • Essential v Marginal Job Functions

17
Essential job functions
  • Factors to consider
  • written job descriptions before the position was
    advertised for
  • employers opinion
  • duties other people in the same position perform
  • duties other people performed who held the same
    position
  • duties of past employees in similar positions
  • terms of a collective bargaining agreement
  • Essential v. marginal
  • Essential functions are important and necessary
    job duties
  • Must be able to perform these duties
  • Qualified whether need an accommodation or not

18
ADA Statutory Provision
  • Discrimination includes an employers failure to
    make reasonable accommodations to the known
    physical or mental limitations of an otherwise
    qualified employee or applicant, unless the
    employer can demonstrate that the accommodation
    would impose an undue hardship on the operation
    of its business. 42 U.S.C. 12112(b)(5)(A).

19
Reasonable Accommodations
  • Includes making facilities accessible and usable
    by individuals with disabilities
  • Job restructuring
  • Part-time or modified work schedules
  • Acquisition or modification of equipment or
    devices
  • Appropriate adjustment or modification of
    examinations, training materials or policies
  • The provisions of qualified interpreters and
    readers and
  • Reassignment to a vacant position and
  • Any other similar accommodations for people with
    disabilities.

20
When can disability related questions be asked?
  • Yes After job offer extended but before you
    actually begin work OR
  • Yes After first day of work BUT ONLY IF job
    related and consistent with business necessity
  • NO- If not for reasons above OR anytime before
    job offer extended

21
Keeping Medical Information Confidential
  • The ADA requires employers to keep protected
    medical records confidential with a few limited
    exceptions for disclosure.

22
When disclosure of a disability may be
appropriate ?
  • Supervisors who need to know because the medical
    information relates to job assignments or
    accommodations.
  • Safety personnel if the disability or med
    condition may require emergency treatment.

23
Enforcement
  • File a complaint of discrimination with the
    Arizona Attorney Generals Office, Civil Rights
    Division under the states Arizonans With
    Disabilities Act (AzDA), by calling
  • (602) 542-5263 or TDD (602) 542-5002
  • in Phoenix, -or-
  • (520) 628-6500 or TDD (520) 628-6872
  • in Tucson.
  • Complaints must be filed within 180 days from
    the date of the discrimination.

24
Enforcement
  • File a complaint of discrimination with the Equal
    Employment Opportunity Commission (EEOC)
  • An individual may start the process by going to
    the EEOC office or calling the office. Its
    address and telephone number are
  • (602) 640-5000 (Voice)
  • (602) 640-5072 (TTY)
  • (800) 669-4000 (voice for people living outside
    Phoenix)
  • (800) 877-8339 (TTY for people living outside
    Phoenix)
  • Complaints must be filed within 300 days from
    the date of the discrimination.

25
Title II and III of the ADA?
  • Individual with a disability
  • Actual disability
  • History of a substantially limiting impairment
  • Regarded as having a substantially limiting
    impairment
  • Qualified depends upon whether there are
    qualifications for participation in the place of
    public accommodation.

26
Title II applies to public entities
  • Any state or local government
  • Any department, agency, special purpose district,
    or other instrumentality of a State or States or
    local government and
  • The National Railroad Passenger Corporation and
    any commuter authority.
  • 42 U.S.C. 12131

27
Examples of covered programs (Title II)
  • State legislatures
  • State courts
  • Town meetings
  • Police and fire departments
  • Motor vehicle licensing
  • Libraries and parks

28
Title III applies to. . .
  • Places of public accommodations,
  • Commercial facilities, and
  • Private entities that offer examinations or
    courses related to applications, licensing,
    certification or credentialing for secondary or
    post secondary education, professional or trade
    purposes.

29
Places of Public Accommodation
  • an inn, hotel, motel or other place of lodging
  • a restaurant, bar or other place serving food or
    drink
  • a motion picture house, theater, concert hall,
    stadium or other place of exhibition or
    entertainment
  • an auditorium, convention center, lecture hall,
    or other place of public gathering,
  • a bakery, grocery store, clothing store, hardware
    store, shopping or other sales or rental
    establishment

30
Exempted from coverage under Title III of the ADA
  • Private clubs
  • Private homes
  • Mixed use residential facilities
  • Religious entities

31
When a Private Club is a covered entity under
Title III
  • To the extent that the facilities are made
    available to customers or patrons of a place of
    public accommodation.
  • 42 U.S.C. 12187

32
Overview of Requirements
  • May not refuse to allow a person with a
    disability to participate in a program, service
    or activity
  • Must provide services in an integrated setting,
    unless separate program is necessary to ensure
    equal opportunity
  • Must eliminate eligibility criteria that screen
    out or tends to screen out persons with
    disabilities.

33
Requirements
  • Must make reasonable modifications in policies,
    practices and procedures to ensure equal access
  • Must provide effective communication, and
    auxiliary aids and services when required to
    ensure effective communication.

34
Examples of Auxiliary Aids and Services
  • Qualified Interpreters
  • Assistive Listening Devices
  • Captioning
  • TDD/TTY and Relay
  • Alternative formats, i.e. taped text
  • Brailled materials

35
Additional Requirements
  • Must not impose charges on individuals with
    disabilities to provide modifications
  • May provide special benefits beyond those
    required by regulations
  • Shall operate programs, when viewed in their
    entirety, to be readily accessible to and usable
    by persons with disabilities.

36
Essential Eligibility Requirements
  • Will depend on the type of service or activity
    involved an example
  • Food Stamps must meet financial eligibility and
    other criteria
  • Public postsecondary schools must meet the
    academic and technical requirements for admission
    or participation, with or without reasonable
    accommodations.

37
Program Access
  • Must ensure that individuals with disabilities
    are not excluded from services, programs and
    activities because of inaccessibility.

38
Integrated Programs
  • May not provide separate program unless necessary
    for effective services
  • Even if separate program is permitted, person
    with a disability has the right to choose to
    participate in regular program
  • May not require a person with a disability to
    accept a special accommodation if they choose not
    to.

39
Physical Accessibility
  • Existing facilities are those constructed for
    first occupancy prior to January 26, 1992.
  • Must remove architectural barriers that are
    readily achievable
  • Must provide program access where barrier removal
    is not readily achievable

40
Examples of Alternative Methods
  • Relocating a service to an accessible floor or
    facility
  • Providing an aide or personal assistance to
    enable a person with a disability to obtain a
    service
  • Provide the service at home

41
New Construction and Alterations
  • Those facilities designed and constructed for
    first occupancy after January 26, 1992
  • Those facilities or portions of facilities
    altered after January 26, 1992
  • Must ensure buildings are free of architectural
    barriers, using either the Uniform Federal
    Accessibility Standards (UFAS) or the ADA
    Accessibility Guidelines (ADAAG).
  • ADAAG and UFAS at www.access-board.gov

42
Limits of Duty to Provide Access
  • Public entities are not required to take any
    action that would result in an undue financial
    or administrative burden, or fundamentally
    alter the nature of the program, activity or
    service.
  • Must take other necessary action to ensure equal
    access.

43
Enforcement
  • File a complaint with the U.S. Department of
    Justice (DOJ) alleging violation of Title II or
    III of the ADA.
  • Title II Complaint must be filed within 180 days
    of the date of the discrimination.
  • Title III There is no deadline for filing this
    complaint, but we urge you to do so as soon as
    possible to preserve your rights.

44
Enforcement
  • File a complaint with the Arizona District of
    the U.S. Attorneys Office, under Title III of
    the ADA, by calling (800) 800-2570. There is no
    deadline in which to file this complaint, but
    again, we urge you to do so as soon as possible
    to preserve your rights.

45
Enforcement (Title III/AzDA)
  • File a complaint of discrimination with the
    Arizona Attorney Generals Office, Civil Rights
    Division under the states Arizonans With
    Disabilities Act (AzDA), by calling
  • (602) 542-5263 or TDD (602) 542-5002
  • in Phoenix, -or-
  • (520) 628-6500 or TDD (520) 628-6872
  • in Tucson.
  • Complaints must be filed within 180 days from
    the date of the discrimination.

46
Enforcement
  • Lawsuits
  • Individuals can bring lawsuits to enforce their
    rights under Title II and III.
  • Remedies include
  • Injunctive relief
  • Monetary damages (Ninth Circuit requires the
    discrimination to be intentional to obtain
    monetary relief)
  • Reasonable attorneys fees to the prevailing
    Plaintiff.

47
Not covered by Title II or III of the ADA but
covered by other civil rights/disability laws
  • Airlines are covered by the federal Air Carriers
    Access Act however airports and terminals are
    covered by Title III.
  • Housing covered by the Fair Housing Act.
  • Telecommunications however Title IV of the ADA
    applies to common carriers that provide
    interstate wire or radio communications.

48
Air Carriers Access Act
  • The Air Carrier Access Act of 1986 (ACAA)
    prohibits discrimination on the basis of
    disability in air transportation (49 U.S.C.
    41705). Its implementing regulations are
    promulgated by the U.S. Department of
    Transportation are at 14 C.F.R. Part 382. The
    ACAA addresses issues including aircraft
    accessibility, airport facilities accessibility
    and requirements for services, as well as
    administrative provisions and compliance
    procedures.
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