Americans with Disabilities Act

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The Americans with Disabilities Act of 1990[1] (ADA) is the short title of United States (Pub.L. 101-336, 104 Stat. 327, enacted July 26, 1990), codified at 42 U.S.C. § 12101 et seq. It was signed into law on July 26, 1990, by President George H. W. Bush, and later amended with changes effective January 1, 2009.[2] The ADA is a wide-ranging civil rights law that prohibits, under certain circumstances, discrimination based on disability. It affords similar protections against discrimination to Americans with disabilities as the Civil Rights Act of 1964[3], which made discrimination based on race, religion, sex, national origin, and other characteristics illegal. Disability is defined as "a physical or mental impairment that substantially limits a major life activity." The determination of whether any particular condition is considered a disability is made on a case by case basis. Certain specific conditions are excluded as disabilities, such as current substance abuse and visual impairment which is correctable by prescription lenses.

On September 25, 2008, President George W. Bush signed into law The ADA Amendments Act of 2008 (ADAAA). It is intended to give broader protections for disabled workers and "turn back the clock" on court rulings which Congress deemed too restrictive.[4] The ADAAA includes a list of impairments to major life activities.

Employment, services and accommodations

Title I - Employment

42 U.S.C. § 12111–12117

The ADA states that a covered entity shall not discriminate against a qualified individual with a disability. This applies to job application procedures, hiring, advancement and discharge of employees, worker's compensation, job training, and other terms, conditions, and privileges of employment. Covered entity can refer to an employment agency, labor organization, or joint labor-management committee, and is generally an employer engaged in interstate commerce and having 15 or more workers. Discrimination, among other things, may include limiting or classifying a job applicant or employee in an adverse way, denying employment opportunities to people who truly qualify, or not making reasonable accommodations to the known physical or mental limitations of disabled employees, not advancing employees with disabilities in the business, and/or not providing needed accommodations in training. Employers can use medical entrance examinations for applicants, after making the job offer, only if all applicants (regardless of disability) must take it, and if it is treated as a confidential medical record. Qualified individuals do not include any employee or applicant who is currently engaging in the illegal use of drugs when that usage is the basis for the employer's actions.

Part of Title I was found unconstitutional by the United States Supreme Court in the case of Board of Trustees of the University of Alabama v. Garrett as violating the sovereign immunity rights of the several states as specified by the Eleventh Amendment to the United States Constitution. The provision allowing private suits against states for money damages was invalidated.

Title II - Public Services (and public transportation)

See 42 U.S.C. § 12131–12165

Title II has two sections. One covers public agencies (local, county, state, etc., government and their units). That section generally requires the agencies to comply with regulations similar to Section 504 of the Rehabilitation Act. These rules cover access to all programs offered by the entity. Access includes physical access described in the Uniform Federal Accessibility Standards or the ADA Standards for Accessible Design and access that might be obstructed by discriminatory policies or procedures of the entity.

The other section of Title II is specific to public transportation provided by public entities. It includes the National Railroad Passenger Corporation (better known as Amtrak), along with all other commuter authorities. This section requires the provision of paratransit services by public entities.

Both sections state that a "public entity" can be any state or local government or any department or agency thereof. The lack of accessibility or certain services can be considered discrimination, regardless of who it actually affects. For example, a lack of wheelchair accessibility in passenger cars, or even the leasing of wheelchair inaccessible ones without a "good faith" attempt to lease wheelchair accessible ones is considered discrimination under the ADA and the Rehabilitation Act of 1973.

Title III - Public Accommodations (and Commercial Facilities)

See 42 U.S.C. § 12181–12189

Under Title III, no individual may be discriminated against on the basis of disability with regards to the full and equal enjoyment of the goods, services, facilities, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation. "Public accommodations" include most places of lodging (such as inns and hotels), recreation, transportation, education, and dining, along with stores, care providers, and places of public displays, among other things. This implies the presence of an ADA Compliance Kit in places of "public accommodations".

Most of the lawsuits filed under Title III of the ADA deal with the physical conditions or "accessibility" of physical places. Under Title III of the ADA, all "new construction" (construction, modification or alterations) after the effective date of the ADA (approximately July of 1992) must be fully compliant with the Americans With Disabilities Act Accessibility Guidelines ("ADAAG")[1] found in the Code of Federal Regulations at 28 C.F.R., Part 36, Appendix "A."

Perhaps even more importantly, Title III also has application to existing facilities. One of the definitions of "discrimination" under Title III of the ADA is a "failure to remove" architectural barriers in existing facilities. See 42 U.S.C. § 12182(b)(2)(A)(iv).

This means that even facilities that have not been modified or altered in any way after the ADA was passed still have obligations. The standard is whether "removing barriers" (typically defined as bringing a condition into compliance with the ADAAG) is "readily achievable," defined as "easily accomplished without much difficulty or expense."

The statutory definition of "readily achievable" calls for a balancing test between the cost of the proposed "fix" and the wherewithal of the business and/or owners of the business. Thus, what might be "readily achievable" for a sophisticated and financially capable corporation might not be readily achievable for a small "mom-n-pop" outfit.

There are exceptions to this title; many private clubs and religious organizations may not be bound by Title III. With regard to historic properties (those properties that are listed or that are eligible for listing in the National Register of Historic Places, or properties designated as historic under State or local law), those facilities must still comply with the provisions of Title III of the ADA to the "maximum extent feasible" but if following the usual standards would "threaten to destroy the historic significance of a feature of the building" then alternative standards may be used. Nonetheless, as Frank Bowe predicted when he testified as the lead witness on Title III in the Senate hearings leading up to enactment, the fact that Title III calls for accessibility in, and alterations to, many thousands of stores, restaurants, hotels, etc., in many thousands of communities across the U.S. means that this Title probably has had more effect on the lives of more Americans with disabilities than any other ADA title.

Title IV - Telecommunications

Title IV of the ADA amended the landmark Communications Act of 1934 primarily by adding section 47 U.S.C. § 225. This section requires that all of the 1,600 some-odd telecommunications companies in the U.S. take steps to ensure functionally equivalent services for consumers with disabilities, notably those who are deaf or hard of hearing and those with speech impairments. When Title IV took effect in the early 1990s, it led to installation of public Teletypewriter (TTY) machines and other TDDs (Telecommunications Device for the Deaf). Title IV also led to creation, in all 50 States and the District of Columbia, of what were then called dual-party relay services and now are known as Telecommunications Relay Services (TRS). Today, many TRS-mediated calls are made over the Internet by consumers who use broadband connections. Some are Video Relay Service (VRS) calls, while others are text calls. In either variation, communication assistants translate between the signed/typed words of a consumer and the spoken words of others. In 2006, according to the Federal Communications Commission (FCC), VRS calls averaged two million minutes a month.

Title V - Miscellaneous Provisions

See 42 U.S.C. § 12201–12213.

Title V includes technical provisions. It discusses, for example, the fact that nothing in the ADA amends, overrides or cancels anything in Section 504. Additionally, Title V includes an anti retaliation or coercion provision. The Technical Assistance Manual for the ADA explains it: "III-3.6000 Retaliation or coercion. Individuals who exercise their rights under the ADA, or assist others in exercising their rights, are protected from retaliation. The prohibition against retaliation or coercion applies broadly to any individual or entity that seeks to prevent an individual from exercising his or her rights or to retaliate against him or her for having exercised those rights . . . Any form of retaliation or coercion, including threats, intimidation, or interference, is prohibited if it is intended to interfere with the exercise of rights under the ADA."

Major life activities

The ADA defines a covered disability as "a physical or mental impairment that substantially limits a major life activity." The Equal Employment Opportunity Commission (EEOC) was charged with interpreting the 1990 law with regard to discrimination in employment. Its regulations narrowed "substantially limits" to "significantly or severely restricts".

In 2008, effective January 1, 2009, the ADAAA broadened the interpretations and added to the ADA examples of "major life activities" including, but not limited to, "caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working" as well as the operation of several specified "major bodily functions".[4] The Act overturns a 1999 U.S. Supreme Court case which held that an employee was not disabled if the impairment could be corrected by mitigating measures; it specifically provides that such impairment must be determined without considering such ameliorative measures. Another court restriction overturned is the interpretation that an impairment that substantially limits one major life activity must also limit others to be considered a disability.[4]

The ADAAA will undoubtedly lead to broader coverage of impaired employees. The United States House Committee on Education and Labor states that the amendment "makes it absolutely clear that the ADA is intended to provide broad coverage to protect anyone who faces discrimination on the basis of disability."[5]

Exclusion of LGBT persons

On September 07, 1989, former Senator Jesse Helms, proposed (and was successful in adding) an amendment to the bill S 933. (what would become the Americans with Disabilities Act)

`Sec. 12211. Definitions (a) Homosexuality and bisexuality For purposes of the definition of "disability" in section 12102(2) of this title, homosexuality and bisexuality are not impairments and as such are not disabilities under this chapter. (b) Certain conditions Under this chapter, the term "disability" shall not include (1) transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders; (2) compulsive gambling, kleptomania, or pyromania; or (3) psychoactive substance use disorders resulting from current illegal use of drugs.'

This amendment to the law excluded transsexual people, among others, from protection under this important civil rights law. It is one of the most egregious examples of unfair but legal systemic discrimination against transsexual people.

Political pressure

The ADA (1990) is unusual because more than a hundred groups dedicated to disability rights, civil rights, and social justice worked together to ensure its passage. Justin Dart was a major organizer.

Many of the standards mandated by the national government for the ADA were first incorporated by Ruthe B. Cowl, who established and operated the Cowl Rehabilitation Center in Laredo, Texas from 1959 until her death in 2008.[6]

Quote

On signing the measure, George H. W. Bush said:

“ I know there may have been concerns that the ADA may be too vague or too costly, or may lead endlessly to litigation. But I want to reassure you right now that my administration and the United States Congress have carefully crafted this Act. We've all been determined to ensure that it gives flexibility, particularly in terms of the timetable of implementation; and we've been committed to containing the costs that may be incurred.... Let the shameful wall of exclusion finally come tumbling down."[7] ”

Criticism

The ADA is a frequent target of criticism. For example, some claim that individuals who are diagnosed with one of the so-called "lesser disabilities," such as minor neck or back pain (see neuropathy) are being "accommodated" when they should not be.[citation needed]

However, the ADA allows private plaintiffs to receive only injunctive relief (a court order requiring the public accommodation to remedy violations of the accessibility regulations) and attorneys' fees, and does not provide monetary rewards to private plaintiffs who sue non compliant businesses. Unless a state law, such as the California Unruh Civil Rights Act,[8] provides for monetary damages to private plaintiffs, persons with disabilities do not obtain direct financial benefits from suing businesses that violate the ADA.

Thus, "professional plaintiffs" are typically found in states that have enacted state laws that allow private individuals to win monetary awards from non-compliant businesses.[8] At least one of these plaintiffs in California has been barred by courts from filing lawsuits unless he receives prior court permission.[8] The attorneys' fees provision of Title III does provide incentive for lawyers to specialize and engage in serial ADA litigation, but a disabled plaintiff does not obtain financial reward from attorneys' fees unless they act as their own attorney, or as mentioned above, a disabled plaintiff resides in a state which provides for minimum compensation and court fees in lawsuits.

Moreover, there may be a benefit to these "private attorneys general" who identify and compel the correction of illegal conditions: they may increase the number of public accommodations accessible to persons with disabilities. “Civil rights law depends heavily on private enforcement. Moreover, the inclusion of penalties and damages is the driving force that facilitates voluntary compliance with the ADA.” [9]

Additional courts have noted: “As a result, most ADA suits are brought by a small number of private plaintiffs who view themselves as champions of the disabled. For the ADA to yield its promise of equal access for the disabled, it may indeed be necessary and desirable for committed individuals to bring serial litigation advancing the time when public accommodations will be compliant with the ADA.” [10]

Even those who support the intent of the law worry that it might have unintended consequences. Among other arguments, supporters hypothesize that the Act creates additional legal risks for employers who then quietly avoid hiring people with disabilities to avoid this risk. And such researchers[11][citation needed] claim to have documented a sharp drop in employment among individuals with a disability after passage of the Act.[12][citation needed]

The ADA did not come with a guide for how employees and employers should apply the Act to mental disabilities. Psychologist Dr. John Fielder (1994) wrote a manual for employers that has been used by many parties concerned with issues of cognitive disabilities.[citation needed]

Others[13] believe that the law has been ineffectual. Many people think that one of the major flaws or weaknesses of the Americans with Disabilities Act is that it puts almost the entire burden of enforcement on individual persons with disabilities.

Thousands of people have submitted requests to the Department of Justice for investigation of barriers in older buildings and design and construction errors in brand new facilities. Most of these are ignored, because even if the government wanted to investigate all of them, they lack the staff or budget to do so.[citation needed] In its 2004 Americans with Disabilities Act Report, the Department of Justice identified the “pervasive and chronic failure of businesses to comply with even the most rudimentary access requirements under the Americans with Disabilities Act.” [14]

Most business owners realized after a while that there was little chance that the DOJ would come after them, and thus put off making changes to remove barriers. In most cases of uncooperative businesses, individuals must hire an attorney and bring a civil suit.

Another criticism by John D. Wilker is that the act limits the ability of businesses to make their own choices when it comes to employees.

ADA case law

There have been some notable cases regarding the ADA. For example, a major hotel room marketer with its business presence on the Internet is being sued because its customers with disabilities cannot reserve hotel rooms through its website without substantial extra efforts that persons without disabilities are not required to perform.[15] These represent a major potential expansion of the ADA in that this, and other similar suits (known as "bricks vs. Clicks"), seeks to expand the ADA's authority to cyberspace, where entities may not have actual physical facilities that are required to comply.

National Federation for the Blind v. Target

This is a case where a major retailer, Target Corp., was sued because their web designers failed to design its website to enable persons with low or no vision to use it.[16]

Board of Trustees of the University of Alabama v. Garrett

Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001), was a United States Supreme Court case about Congress's enforcement powers under the Fourteenth Amendment to the Constitution. It decided that Title I of the Americans with Disabilities Act was unconstitutional insofar as it allowed states to be sued by private citizens for money damages.

Barden v. The City of Sacramento

Another example, filed in March 1999, claimed that the City of Sacramento failed to comply with the ADA when, while making public street improvements, it did not bring its sidewalks into compliance with the ADA. Certain issues were resolved in Federal Court. One issue, whether sidewalks were covered by the ADA, was appealed to the 9th Circuit Court of Appeals which ruled that sidewalks were a "program" under ADA and must be made accessible to persons with disabilities. The ruling was later appealed to the U.S. Supreme Court which refused to hear the case, letting stand the ruling of the 9th Circuit Court. [17].

Spector v. Norwegian Cruise Line Ltd.

This was a case that was decided by the United States Supreme Court in 2005. The defendant argued that as a vessel flying the flag of a foreign nation was exempt from the requirements of the ADA. This argument was accepted by a federal court in Florida and, subsequently, the Fifth Circuit Court of Appeals. However, the U.S. Supreme Court reversed the ruling of the lower courts on the basis that Norwegian Cruise Lines was a business headquartered in the United States whose clients were predominantly Americans and, more importantly, operated out of port facilities throughout the United States.

Olmstead, Commissioner, Georgia Department of Human Resources, et al. v. L. C., by zimring, guardian ad litem and next friend, et al.

This was a case before the United States Supreme Court in 1999. The two plaintiffs L.C. and E.W. were institutionalized in Georgia for diagnosed mental retardation and schizophrenia. Clinical assessments by the state determined that the plaintiffs could be appropriately treated in a community setting rather than the state institution. The plaintiffs sued the state of Georgia and the institution for being inappropriately treated and housed in the institutional setting rather than being treated in one of the state's community based treatment facilities.

The Supreme Court decided under Title II of the ADA that mental illness is a form of disability and therefore covered under the ADA, and that unjustified institutional isolation of a person with a disability is a form of discrimination because it "perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life." The court added that "confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment."

Therefore, under Title II no person with a disability can be unjustly excluded from participation in or be denied the benefits of services, programs or activities of any public entity.[18]

    • (Olmstead v. L.C. should not be confused with Olmstead v. United States, 277 U.S. 438 (1928), a case in 1928 regarding wiretapping.)

Resources

  • Acemoglu, Daron & Angrist, Joshua D. (2001). Consequences of Employment Protection? The Case of the Americans with Disabilities Act. Journal of Political Economy, volume 109 (2001), pages 915–957.
  • Bush, George H. W., Remarks of President George Bush at the Signing of the Americans with Disabilities Act. Available on-line at Equal Employment Opportunity Commission.
  • DeLeire, Thomas. (Autumn, 2000). The Wage and Employment Effects of the Americans with Disabilities Act. Journal of Human Resources, Vol. 35, No. 4, pp. 693-715
  • Fielder, J. F. Mental Disabilities and the Americans with Disabilities Act. Westport, CT: Quorum Books, 2004.
  • Hamilton Krieger, Linda, ed., Backlash Against the ADA: Reinterpreting Disability Rights Ann Arbor: University of Michigan Press, 2003.
  • Johnson, Mary. (2000). Make Them Go Away: Clint Eastwood, Christopher Reeve & The Case Against Disability Rights. Louisville, KY: The Advocado Press.
  • Schall, Carol M. (Jun 1998). The Americans with Disabilities Act--Are We Keeping Our Promise? An Analysis of the Effect of the ADA on the Employment of Persons with Disabilities. Journal of Vocational Rehabilitation, v10 n3 p191-203.
  • Schwochau, Susan & Blanck, Peter David. The Economics of the Americans with Disabilities Act, Part III: Does the ADA Disable the Disabled? BERKELEY JOURNAL OF EMPLOYMENT & LABOR LAW [Vol. 21:271]
  • Switzer, Jacqueline Vaughn. Disabled Rights: American Disability Policy and the Fight for Equality. Washington, DC: Georgetown University Press, 2003...
  • Weber, Mark C. Disability Harassment. New York, NY: NYU Press, 2007.

External links

References

  1. 1.0 1.1 Americans with Disabilities Act of 1990
  2. President Bush Signs ADA Changes into Law. HR.BLR.com (2008-09-25).
  3. Civil Rights Act of 1964
  4. 4.0 4.1 4.2 ADA Amendments Act (ADAAA)— What Employers Need to Know. HR.BLR.com (2008).
  5. House of Representatives Committee on Education and Labor. The ADA Amendments Act of 2008. â€œBROKEN LINK”
  6. :: Laredos.net :: - Bussines
  7. The U.S. Equal Employment Opportunity Commission
  8. 8.0 8.1 8.2 Stateman, Alison. "[hhttp://www.time.com/time/nation/article/0,8599,1866666,00.html Lawsuits by the Disabled: Abuse of the System?]", TIME. Retrieved on 2008-12-29. 
  9. Parr v. L & L Drive-Inn Restaurant (D. Hawaii 2000) 96 F.Supp.2d 1065, 1082, citing and quoting, Committee Print, Vol. II, 101st Cong., 2d Sess., at 1481-82 (1990); 42 U.S.C. § 12101(b)(2); S.Rep. No. 101-116, at 15 (1989).
  10. Molski v. Evergreen Dynasty Corp., (9th Cir. 2007) 500 F.3d 1047, 1062; D'Lil v. Best Western Encina Lodge & Suites (9th Cir. 2008) 538 F.3d 1031, 1040.
  11. (e.g., DeLeire, 2000; Acemoglu & Angrist, 2001)
  12. (see Schwochau & Blanck for counter arguments)
  13. (see Schall, 1998)
  14. [1]
  15. Disability Rights Advocates
  16. National Federation for the Blind v. Target at Disability Rights Advocates
  17. Barden v. Sacramento from Disability Rights Advocates
  18. OLMSTEAD V. L. C. from Cornell University Law School - Syllabus for the Supreme Court Decision in 1999

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