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The Americans with Disabilities Act


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Title: The Americans with Disabilities Act

The Americans with Disabilities Act
Idaho Task Force on the Americans with
Disabilities Act Idaho affiliate of the DBTAC
Inclusion Acceptance
  • This presentation was developed by the Idaho Task
    Force on the Americans with Disabilities Act, and
    is provided at no cost solely for training
    purposes. It cannot be altered except by written
    permission from the Idaho Task Force on the ADA.
    None of the contents of this presentation is
    intended to provide legal advice. It is intended
    only to provide a general overview of the ADA.
    Please direct questions about specific situations
    to your legal counsel.

Enactment and effective date
  • The ADA is a civil rights law that was enacted on
    July 26, 1990.

Titles I, II III
  • Title I- Employment
  • Title II- Government Services
  • Title III- Public Accommodations

ADA Fact
  • There are actually 5 titles to the ADA..

Disability Rights Law An Overview
  • Legal and Political roots of the ADA are deep in
    the Civil Rights era of the 1960s

Architectural Barriers Act of 1968
  • Requires certain federally financed buildings be
    designed and constructed to be accessible
  • This is the cornerstone of later efforts to
    guarantee access in federally funded facilities

ADA Fact
  • In 1990, Congress estimated 43 million Americans
    had one or more physical or mental disabilities.
  • In the mid-90s that figure was revised to 49
    million Americans.

Scope of the ADA
  • The scope is broad. The rights that are protected
    are parallel to those protected for women and
    racial, ethnic and religious minorities.

Scope of ADA
  • In employment, the ADA prohibits discrimination
    against qualified individuals with disabilities
    in public and private sector employment.
  • This includes a requirement that those employers
    covered under the Act make reasonable

Title I- Employment
  • Title I of the ADA prohibits discrimination
    against persons with disabilities in employment
    by businesses having 15 or more employees, or by
    State and local governments.

ADA Fact - Idaho
  • Idaho prohibits discrimination in employment by
    businesses having 5 or more employees, not 15

Title I
  • Title I, with respect to private employers, is
    enforced by the Equal Employment Opportunity
    Commission (EEOC).

Definition of Disability
  • Is based on the definition under the
    Rehabilitation Act. It reflects the specific type
    of discrimination experienced by people with

Definition of Disability
  • It is not the same as the definition in other
    laws such as
  • Workers Compensation
  • Social Security
  • Disabled Veterans

Three Prongs of the Definition
  • Person with a physical or mental impairment that
    limits one or more major life activities
  • Person with a record of such a physical or mental
  • Person who is regarded as having such an

  • An entity may not discriminate against individual
    or entities because of their relationship with a
    person with a disability

Retaliation or Coercion
  • Retaliation or coercion is prohibited under the

Physical Impairments
  • Any physiological disorder or condition,
    cosmetic disfigurement, or anatomical loss
    affecting one or more of the following body
    systems neurological musculoskeletal, special
    sense organs, respiratory (including speech
    organs), cardiovascular, reproductive, digestive,
    genitourinary, hemic and lymphatic, skin and
    endocrine. (This list is non-exhaustive)

Mental Impairment
  • Any mental or psychological disorder, such as
    mental retardation, organic brain syndrome,
    emotional or mental illness, and specific
    learning disabilities. (This list is

First prong
  • Having a disability that substantially limits a
    major life activity

Substantially Limits
  • Means the major life activity is restricted as to
    the conditions, manner or duration under which it
    can be performed in comparison to most people.

Three factors to consider
  1. The nature and severity of the condition
  2. How long it will last or is expected to last and
  3. Its permanent or long term impact, or expected

Combination of Impairments
  • An individual may have two or more impairments,
    neither of which alone constitute a disability,
    but taken together may be considered disabling.

Temporary Impairments
  • May or may not be disabilities.
  • The question is answered by looking at the
    extent, duration, and impact of the impairment.

Major life activities include
  • Caring for oneself
  • Performing manual tasks
  • Walking
  • Seeing
  • Hearing
  • Speaking
  • Breathing
  • Learning
  • Working

Case law around the country has included the
following in the list of major life activities
  • Bathing
  • Dressing
  • Toileting
  • Sleeping
  • Throwing
  • Using stairs
  • Traveling
  • Attending school
  • Sexual activities
  • Concentrating
  • Reproducing
  • Interacting with others
  • Writing
  • Thinking
  • Squatting

V. Mitigating measures
Sutton v. United Airlines
  • Court considered whether impairment should be
    evaluated with regard to mitigating measures or
  • Twin female regional airline pilots with myopia
    sued UAL for not hiring them for their
    uncorrected vision.

Sutton v. United Airlines (cont.)
  • Court ruled that ADA requires a present
    substantial limitation. If corrected, no
    substantial limitation of major life activity.
  • Individualized inquiry. Look at the effect of
    the impairment.
  • Also look at the negative as well as the positive
    effects from treatments or mitigating measures.

ADA Fact
  • Substantial limitation is assessed with regard to
    mitigating measures.

Second prong
  • A record of having a disability

For example
  • A history of mental illness
  • Heart disease
  • Cancer
  • An incorrect classification such as mental

Third prong
  • Regarded as having a disability

In other words
  • A person who is not substantially limited but is
    treated as such
  • A person whose substantial limitation is only the
    result of the attitudes of others
  • Someone who has no impairment but is treated as

What does substantial limitation mean?
  • A person with a substantial limitation is unable
    to perform a major life activity that a person in
    the general population could perform
  • A person is restricted in the condition, manner
    or duration that the average person can perform
    the same major life activity

  • A person who currently illegally uses drugs is
    not protected by the ADA when the covered entity
    acts on the basis of such use alone.
  • However, an individual who is engaged in or has
    completed drug rehabilitation and is no longer
    using drugs is protected under the ADA.

Some important distinctions
  • The use of a drug must be illegal to be exempt
    from the definition of disability not the
    substance itself.
  • Addiction is covered under the definition of
    disability but not current illegal use.
  • If a person was addicted in the past or is
    perceived as addicted they would be covered.
  • Casual users in the past are not covered.

What about alcoholism?
  • People who abuse alcohol are considered disabled
    even if they are currently using. A person who
    is an alcoholic is considered a person with a
    disability under the ADA.

  • Homosexuality and Bisexuality
  • Transvestitism, transsexuals, pedophilia,
    exhibitionism, voyeurism, gender identity
    disorders not resulting from physician
    impairments, or other sexual behavioral
  • Compulsive gambling, kleptomania, or pyromania
  • Psychoactive substance use disorders resulting
    from current illegal use of drugs.

Title I of the ADA
  • Employment Issues

Qualified Individual
  • Individual who satisfies the requisite work,
    experience, education and other job-related
    requirements of the employment position such
    individual holds or desires, and who, with or
    without reasonable accommodation can perform the
    essential functions of such position.

Steps to Determine Whether an Individual is
  1. Determine if the individual meets the necessary
    prerequisites for the job and
  2. Determine if the individual can perform the
    essential functions of the job, with or without
    reasonable accommodation.

Essential Functions
  • The ADA requires that the employer focus on the
    essential functions of a job to determine whether
    a person with a disability is qualified.

Reasonable accommodations
  • Employers must make reasonable accommodations to
    known physical or mental limitations of a
    qualified applicant or employee with a disability
    unless the employer can demonstrate that the
    accommodation would be an undue hardship

Definition of Reasonable Accommodation
  • Any modification or adjustment to a job, an
    employment practice, or the work environment that
    makes it possible for an individual with a
    disability to enjoy an equal employment

Required in three areas
  • Ensure equal opportunity in application process
  • Enable qualified individual with a disability to
    perform the essential functions of a job and
  • To enable an employee with a disability to enjoy
    equal benefits and privileges of employment.

Prohibits discrimination in any other terms,
conditions and privileges of employment including
  • Recruitment
  • Hiring, promotion, tenure
  • Rates of pay
  • Job assignments
  • Leave
  • Training and development

  • Social activities or
  • Any other term, privilege or condition of

Reasonable Accommodation
  • Required in three areas
  • To ensure equal opportunity in the application
  • To enable a qualified individual with a
    disability to perform the essential functions of
    a job and
  • To enable an employee with a disability to enjoy
    equal benefits and privileges of employment

What are some forms of reasonable accommodation?
  • Job restructuring
  • Modifying work schedules
  • Making facilities accessible
  • Acquiring or modifying equipment or devices
  • Hiring readers, interpreters and assistants
  • Reassignment to a vacant position

Do I have to hire an applicant with a disability
even if they are not qualified?
  • No. A qualified individual with a disability is
    one who satisfies the requisite skill,
    experience, education, and other job-related
    requirements of the position and can perform the
    essential functions of the job with or without
    reasonable accommodation.

ADA Fact
  • Personal items are generally not required as
    forms of reasonable accommodation.

Lets talk about undue hardship.
  • It is the responsibility of the employer to
    provide a reasonable accommodation unless it
    would be an undue hardship.
  • Undue hardship is defined as an action requiring
    significant difficulty or expense, extensive,
    substantial disruption or something that would
    fundamentally alter the nature of employment.

Essential Job Functions
  • These are the fundamental job duties of the
    employment position. They do not include marginal

Essential Job FunctionsQuestions to Ask
  1. Are other employees in the position actually
    required to perform the function?
  2. Would removing that function fundamentally change
    the job?
  3. Does the position exist to perform the function?

Questions Cont
  1. What is the number of other employees available
    to perform the function, or among whom the
    function can be distributed?
  2. What is the degree of expertise or skill required
    to perform the function?

Evidence to look for
  1. Employers judgment as to what is essential
  2. Written job description
  3. Amount of time spent on the task
  4. Terms of a bargaining agreement
  5. Consequences of not performing the task
  6. Work experience of current or former incumbents

Determining Essential Function
  • Focus on the purpose of the function and the
    result to be accomplished rather than on the
    manner in which the function presently is

Recruitment and Hiring
  • ADA does not require employers to undertake
    special activities to recruit people with
  • However, recruitment activities that tend to
    screen out individuals with disabilities may
    violate the ADA

Recruitment and Hiring
  • Pre-offer inquiries about a disability, or about
    the nature of severity of a disability on an
    application, forms in a job interview, or in
    background or reference checks are a problem
    under the ADA.

Pre-Employment Testing
  • ADA has two requirements in relation to tests
  • 1. If a test screens out or tends to screen out
    an individual with a disability or a class of
    such individuals on the basis of a disability, it
    must be job-related and consistent with a
    business necessity and
  • 2. There must be accommodations in administering

This applies to all kinds of tests, including but
not limited to aptitude tests, tests of
knowledge and skill, intelligence tests, agility
tests, and job demonstrations.
Medical Examinations
  • An employer may not make medical inquires or
    conduct a medical examination until after a job
    offer has been made.
  • A job offer may be conditioned on the results of
    a medical exam or inquiry only if it is required
    for all entering employees in similar positions.

Medical Examinations
  • The employer may make a job offer conditional on
    the satisfactory outcome of a medical exam or
    inquiry providing that the employer requires such
    exam for all entering employees in a particular
    job category, not just the individual with the
    disability, or those whom the employer believes
    may have a disability.

What about safety issues?
  • An employer may require that an individual not
    pose a direct threat to the health and safety of

Conditional Job Offer
  • If a conditional offer is withdrawn, employer
    must show
  • 1.Reasons for the exclusion are job-related and
    consistent with business necessity, or that the
    person is being excluded to avoid a direct
    threat and that
  • 2. No reasonable accommodation was available that
    would enable this person to perform the essential
    job functions without significant risk to health
    or safety, or that such an accommodation would
    cause undue hardship.

Post-employment Medical Exams
  • Must be job-related and justified by business
  • May be conducted when there is evidence of a job
    performance or safety problem.
  • May conduct to determine fitness to perform a
    particular job.
  • May perform voluntary exams that are part of
    employee health programs.

Results of Medical Exams
  • All information gathered must be collected and
    maintained on separate forms, in separate medical
    files and must be treated as a confidential
    medical record, not put in the employees
    personal file.

Enforcement of Title I
  • File a complaint with the Equal Employment
    Opportunity Commission
  • File a private lawsuit
  • Take the complaint to dispute resolution

  • An employer or other covered entity may not
    limit, segregate or classify an individual with a
    disability, on the basis of the disability, in a
    manner that adversely affects the individuals

Other Important Acts
  • Air Carriers Access Act
  • Section 508- Information Technology
  • Transportation
  • IDEA

ADA on the Web
  • DOJ
  • EEOC
  • Access Board
  • Job Accommodation Network (JAN)

ADA Technical Assistance
  • Access Board
  • Technical Assistance 800-872-2253
  • Department of Justice
  • Technical Assistance 800-514-0301
  • Equal Employment Opportunity Commission
  • Technical Assistance 800-669-4000
  • Publications 800-669-3362