Transcript Americans with Disabilities Act

Americans with
Disabilities Act
Law and Poverty
History of ADA Act of 1990 –
Section 504

Rehabilitation Act of 1973 (29 USC
791) – called Section 504
Section 504 prohibited discrimination vs
handicapped in
– a. any federal program or activity
– b. any program or activity receiving
federal funds
Section 504
Coverage
– a. handicapped individual
– b. otherwise qualified to participate
– c. excluded solely for reason of handicap
– d. program or employer RECEIVES
FEDERAL ASSISTANCE
Section 504
Definition of handicapped
– a. a physical or mental impairment that
substantially limits one or more of the
major life activities of such individual
– b. a record of such impairment
– c. being regarded as having such an
impairment
Section 504 to ADA
Limited coverage of Section 504 leads
to ADA
Congressional Purpose of
ADA
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Congress was presented with
information about people with
disabilities:
i. SSD & SSI & related programs
cost tens of billions annually
ii. 82% of the disabled say they
would rather work
iii. 43 million people meet the act's
definition of disability
Congressional Purpose
ADA
"The purpose of the ADA ... is to provide
a clear and comprehensive national
mandate to end discrimination against
individuals with disabilities and to
bring those individuals into the
economic and social mainstream of
American life."
Coverage of ADA
Congress estimated 43 million persons
have one or more physical or mental
disabilities as defined in statute
ADA Definition of Disability
Continues Section 504
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ADA adopts same definition of
disability as definition of handicap in
Section 504 of Rehabilitation Act of
1973 and generally is not to be
interpreted in any way to lessen the
standards of Section 504.
ADA Definition of
Disability
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A: a physical or mental impairment
– that substantially limits one or more major life
activities of such an individual; or
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B. a record of such an impairment or
e.g. person with history of physical or
mental illness, even if impairment does not
currently exist; e.g. person who suffered
heart attack; former cancer patients;
recovered alcoholics or drug addicts
C. being regarded as having an impairment
e.g. parents or caretaker of child with
AIDS or even a severely disfigured burn
victim
Others Protected by ADA
1. Retaliation prohibited against non-disabled persons
who oppose unlawful discrimination against the
disabled. (42 USC 12204 (a))
2. Also those who associate with or who provide care
to those with disabilities are protected by ADA from
discrimination:
It is unlawful for a covered entity to exclude or
deny equal jobs or benefits to, or to otherwise
discriminate against, a qualified individual because
of the known disability of an individual with whom
the qualified individual is known to have a family,
business, social or other relationships or
association.
ADA refused to exactly
define physical or mental
impairment
Physical or Mental Impairment are
purposefully not exactly defined to
avoid limiting definition and to allow
room for future growth in recognition
of disabilities
Examples of Physical
Impairments
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. House and Senate reports gives
nonexclusive lists of physical impairments
that cover everything:
physiological conditions or disorders,
cosmetic disfigurement or
anatomical loss covering of any of the body
systems
e.g. covers cancer, diabetes, muscular
dystrophy, epilepsy, cerebral palsy,
paraplegics, but also covers asthma and HIV
and AIDS
Examples of Mental
Impairments
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Reports cover any mental
or psychological disorder
such as mental retardation, organic
brain syndrome,
emotional or mental illness
and learning disabilities
ADA Exclusions
Does cover substance abusers or recovering
alcoholics but NOT those currently engaging in
illegal drugs or suffering from active alcoholism
Also does NOT include: temporary, nonchronic
ailments of short duration (e.g. loss of one arm is
covered, broken arm is not)
Does NOT cover environmental, economic or
cultural disadvantages nor age, nor being a
homosexual, bisexual, compulsive gamblers nor
having a prison record
ADA & Employment –
Title I
Title I of the ADA prohibits
discrimination in all phases of
employment
hiring, advancement, termination,
compensation or other terms of
employment
Title I of ADA – disability
definition
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i. with a disability, or
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ii. who has a record of a disability, or
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iii. is perceived as having a disability or
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iv. who is associated with someone
who has a disability
Title I ADA disability def
(cont)
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PERSON MUST BE DISABLED PLUS:
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i. otherwise qualified
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ii. to perform the essential functions of the job
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iii. with or without reasonable accommodation (e.g.
hearing impaired receptionist)
(This is similar to 42 usc 2000e: commonly called
"Title VII" which prohibits discrimination based on
race, gender, age)
ADA is Equal Opportunity
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NOT AFFIRMATIVE ACTION;
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EQUAL OPPORTUNITY
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Lawyers should know the
difference
ADA Requirements for
Employers
Must Provide or at least Investigate
“Reasonable Accommodation” for:
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a qualified person with a disability
who is able to perform the essential
functions of the job
Reasonable Accommodation
by Employers
Statute itself lists several examples:
 1. physical accessibility (internal and
external) must be done
 2. job restructuring may be called for or redesign of office procedures
 3. flex time; shift adjustments
 4. modifying equipment (hardware and
software)
 5. changing examination procedures
 6. providing qualified readers, interpreters
and attendants
Cost of Accommodation?
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Not necessary if cost creates "undue
financial hardship" on employer
Recall that Congress decided this was
in common good – thus costs passed
on to all employers and in turn to
customers
What is “undue financial
hardship?”
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case by case determination based on:
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nature and cost of accommodation
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financial resources of employer
Employer Defenses to
ADA Claim
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1. Job relatedness and business
necessities defense (42 USC 12113(a))
2. Religious Entity Defense (42 USC
12113(c)(1)
3. Undue Hardship Defense (29 CFR
1630.15(d))
4. Health and Safety Defense (42 USC
12113(b))
Job relatedness and
business necessities defense
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a. neutral qualification standards
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b. essential qualifications of job
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c. REMEMBER the ADA mandates
employers have a duty to attempt or
at least investigate the availability of
reasonable accommodations
Religious Entity Defense
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religious entity may give preference in
employment to individuals of their
religion to perform work connected
with the activities of their religion
religious employers may require
employees conform to tenants of their
religion
Undue Hardship Defense
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A defense to refusal to make reasonable
accommodation is that it would have been
an undue hardship on the employer
However, employer cannot rely on such an
assertion. it must produce evidence and
demonstrate undue hardship
Courts are directed to consider
– i. nature and cost of accommodation
– ii. overall financial resources of employer
– iii. type of employer and type of facility
Health and Safety
Defense
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An employer may require that employees
not pose a direct threat to the health or
safety of other individuals in the work place.
Reasonable accommodation is still required
EEOC has identified four factors to evaluate
the direct threat defense
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i. duration of the risk
ii. nature and severity of the potential harm;
iii. likelihood that potential harm will occur;
iv. the imminence of the potential harm.
Other Forms of ADA
Employment Discrimination
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A. limiting segregating of classifying jobs or
applicants by disability
B. Cannot contractually discriminate
e.g. health care coverage
C. Cannot make pre-employment tests a
screening device for people with disabilities
D. cannot make pre-employment medical
tests condition of job offer unless essential
part of the job
Pre-employment
Screening - 1
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The ADA requires that tests which screen out
persons with disabilities be job related
and consistent with business necessity.
However, tests which measure aptitude, physical
agility, intelligence and specific skills are not
considered to be "medical examinations" under the
ADA and are not subject to the additional special
rules which govern medical examinations.
Make sure that any tests you do use are designed
to test the essential functions of the job, and that
they are accurate predictors of successful
performance on the job. If the tests you use
screen out persons with disabilities, they must be
job related and consistent with business necessity.
Pre-Employment
Screening - 2
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There Special ADA Rules for Medical Examinations
MEDICAL EXAMINATIONS ARE PROHIBITED UNTIL
AFTER EMPLOYERS HAVE MADE A JOB OFFER TO THE
APPLICANT. There are no exceptions.
Employment can be conditioned on the results of an
applicants post-offer medical examination.
NOTE: Employers who require medical examinations, must
require medical examinations of all entering employees, or all
entering employees in the same job category for a certain
position. Cannot give an examination to some and not to
others.
Title I - Remedies
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Enforcement follows Title VII - Civil
Rights Act of 1991
First investigated by EEOC
Jury trial
Compensatory damages and punitive
damages, with some limits depending
on size of employer
Attorney fees, costs and expert fees
TITLE III of ADA: PUBLIC
ACCOMMODATIONS
Prohibits discrimination by those who
own, lease, lease to, or operate places
of public accommodations,"if the
activities of such entities affect
commerce.“ Heart of Atlanta Motel v
United States, 379 US 241 (1964)
Enforcement of Title III
The Department of Justice is
responsible for oversight of this
section. It has promulgated rules and
regs which can be found at 28 CFR 36
What Places Covered?
All.
The Justice Department estimates over 5 million places
constitute public accommodations. The following private
entities are considered public accommodations: (42 USC
12181(7)
 a. all places of lodging
 b. all places serving food or drink
 c. all places of entertainment
 d. all retail establishments
 e. all service establishments
 f. all places of public transportation
 g. professional offices of health care providers or lawyers and
hospitals
 h. etc and everything else
Even private homes can be public accommodations if it is used as
a facility which would fall into the categories listed above
Exemptions are available for private clubs and religious entities
Protected Persons
Law protects current
and potential customers
and clients with disabilities
who otherwise meet eligibility
requirements.
E.g. a health spa which limits membership to 18 years or older could
refuse membership to 17 year old with disability but not 19 year old.
Prohibited Practices
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Denial of Participation
Unequal benefit
Segregated Setting
Retaliation or Coercion
Discrimination against Associates
Maintenance of Accessible Features
Insurance Coverage not a Defense
Obligations of Public
Places - 1
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Cannot use eligibility criteria which
screen out or tend to screen out
individuals with disabilities unless
based on actual safety risks
CANNOT SET DISCRIMINATORY
CRITERIA:
e.g. cannot require drivers license to
cash checks, but can require
appropriate id
Obligations of Public
Places - 2
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Modifications in Policies, Practices and
Procedures 28 CFR 36.302
Requires public accommodations
modify their policies, practices, or
procedures to permit the use of its
services by individuals with disabilities
Obligations of Public
Places - 3
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Auxiliary Aids and services 28 CFR 36.303
Requires public accommodations provide
auxiliary aids and services to the disabled to
allow them to participate. Applies
particularly to communication with disabled
and includes:
– a. aids for hearing impaired like interpreters,
amplifiers for telephones, TDD's, open and
closed captioning
– b. aids for visually impaired like readers, taped
texts, braille materials, large print
– c. use of the most advanced equipment is not
required so long as effective communication is
insured
Cost of Auxiliary Aids
Services
Not required if “undue burden” on public
accommodation, which is determined
by analyzing:
 i. nature and cost of action needed
 ii. overall financial resources of site
 iii. relationship of site with parent
company
 iv. financial resources and size of
parent company
Obligations of Public
Places - 4
Removal of Barriers:
 Requires the removal of architectural barriers or
physical barriers of any kind when such removal is
readily achievable, i.e. easily accomplishable and
without much difficulty or expense
 Substantial detail in regulations, including examples
of readily achievable, modest measures which
should be taken:
 a. installing ramps, curb cuts, repositioning shelves,
repositioning telephones, widening doors,
eliminating turnstiles, rearranging toilets, removing
high pile, low density carpet, installing vehicle hand
controls
Alternatives to Barrier Removal
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Where Barrier Removal is not readily
achievable public accommodations
must make its goods and services
available through alternative methods
e.g. provide a clerk to retrieve
inaccessible goods
Title III - Remedies
Actions may be brought for injunctive
relief by individuals
Actions may be brought for damages by
the Attorney General
Attorney General may also seek civil
fines of up to $50,000 for first
violation and $100,000 for subsequent
violations