GPSolo April/May 2007
The ADA: An Update
Dianne D. DeLair is a staff attorney at Nebraska Advocacy Services, the Center for Disability Rights, Law and Advocacy (NAS); she may be reached at email@example.com. Shirley Mora James is NAS’s senior staff attorney; she may be reached at firstname.lastname@example.org. Marla Fischer-Lempke is NAS’s public information attorney; she may be reached at email@example.com. For more information about NAS, visit www.nebraskaadvocacyservices.org.
The Americans with Disabilities Act of 1990 (ADA) is still alive and thriving even though the courts have done their best to cut it to the bones. A fine example of its viability are the recent landmark cases of Tennessee v. Lane, 541 U.S. 509 (2004) and United States v. Georgia, 126 S. Ct. 877 (2006). In light of cases like Lane and Georgia, it is clear that the ADA has not lost its bite and remains very important in many areas of the law today.
The ADA was initially enacted to promote inclusion of people with disabilities in their communities. Specifically, Titles I, II, and III of the ADA continue to promote access for people with disabilities to employment, governmental programs and services, and public accommodations. Understanding the basics of each of these areas of the ADA will allow you to identify when an ADA issue arises as well as how to address such issues for your client.
In order to establish a prima facie case of employment discrimination under Title I of the ADA, an individual must prove three elements: (1) the individual’s impairment qualifies as a disability within the meaning of the ADA; (2) the individual is qualified to perform the job-essential functions with or without reasonable accommodations; and (3) the individual has suffered an adverse employment action owing to the employer’s act or omission against the individual. Therefore, a person is a qualified individual with a disability if that person has a physical or mental impairment that substantially limits one or more of his or her major life activities. Furthermore, in determining whether an individual’s impairment substantially limits a major life activity, a court must consider: (1) the nature and severity of the impairment, (2) its duration or anticipated duration, and (3) its actual or expected long-term impact.
Keep in mind that courts have held that an individual does not have a “disability” as defined by the ADA if the disability is temporary in nature and the impairment has little or no long-term impact on the individual’s major life activities. The courts also have held that in order to substantially limit a major life activity, the individual’s disability must render that person unable to perform a basic function that the average person in the general population can perform. Alternatively, the individual’s disability must significantly restrict the condition, manner, or duration under which the person can perform his or her major life activity as compared to an average person in the general population.
Special attention needs to be focused on the individual’s essential job functions, which may be established by evidence that includes: (1) the employer’s judgment as to which job functions are essential; (2) written job descriptions prepared before advertising or interviewing applicants for the position; (3) the amount of time spent performing the job function; (4) the consequences of not requiring the incumbent to perform that particular job function; and (5) the current work experience of incumbents in similar jobs. Finally, the individual must prove a link between the individual’s disability and the employer’s adverse employment action. Thus, an individual must show a specific link between the alleged discriminatory animus and the challenged decision, sufficient to support a finding by a reasonable fact finder that an illegitimate criterion actually motivated the employer’s action against the individual with a disability.
A primary goal of the ADA is the equal participation of people with disabilities in the “mainstream” of American society, so public entities must take positive steps to provide the most inclusive setting. Title II applies to state and local governments and the programs they provide. This includes but is not limited to activities of state legislatures; state, county, and municipal courts; police and fire departments; public education; public health care services; voting; and employment.
Public programs do not necessarily have to change their buildings to be accessible. They may choose to offer other options for people with disabilities, including but not limited to, moving programs, meetings, or hearings to accessible areas where people with disabilities are able to participate; changing existing buildings by installing accessibility aids, such as ramps, handrails, signs, or Braille pads; or offering personal aides to people with disabilities. Pre-existing facilities and historical buildings do not have to make architectural changes if the public program can show that it would create an undue burden. However, facilities built or changed after January 26, 1992, must be readily accessible and usable by people with disabilities.
When a public program communicates via the telephone, the ADA requires the use of telephone relay services for people who use telecommunications devices (TDDs) or similar devices. Also, state and local agencies that provide emergency 911 telephone services must provide “direct access” to people who rely on a TDD or computer modem for telephone communication. Finally, public programs must have a system in place so that all interested persons, including people with impaired vision or hearing, can find out about accessible services, activities, and facilities.
You may have a client who owns or operates a commercial business and has questions about compliance under the ADA. Title III protects people with disabilities from discrimination based on their disability in all public services that commercial and private businesses provide. A business providing any public services cannot discriminate against individuals because of their disability nor can it treat people with disabilities separately or differently than people without disabilities. Businesses must give people with disabilities an equal opportunity to benefit from programs, services, and activities that are open to the general public.
Specifically, Title III applies to any business that sells items to the general public, any building that is rented out to the public or used for public activities, or any private business that offers public programs or services. Examples include, but are not limited to, motels and hotels (containing at least six rooms for rent), restaurants, bars, movie theaters, concert halls, auditoriums, retail stores, laundromats, banks, beauty shops, gas stations, offices, parks, private schools, day care centers, senior citizen centers, health spas, bowling alleys, and golf courses.
In order to comply with the ADA, a business cannot refuse to admit a person merely because he or she has a disability or ask about the existence of a disability if it is not relevant to the activity’s purpose. A business may exclude a person with a disability from participating in an activity if that person’s participation would result in a direct threat to the health or safety of others. However, the business must first determine whether anything can be done to accommodate the person and make the activity safer for everyone. The decision that the person poses a direct threat to the health or safety of others cannot be based on generalizations or stereotypes about the particular disability. Instead, it must be based on the specific activity, the actual abilities and disabilities of the person, and the probability that the potential injury will actually occur.
One of the most recognized effects of the ADA is its charge of making businesses physically accessible to individuals with disabilities. Businesses must remove architectural barriers in existing facilities where removal can be carried out without much difficulty or expense. This may include installing ramps; making curb cuts in sidewalks and entrances; repositioning shelves; rearranging tables, chairs, vending machines, display racks, and other furniture; adding raised markings on elevator control buttons; widening doors; installing accessible door hardware, grab bars and raised toilet stalls, and a full-length bathroom mirror; and creating designated accessible parking spaces. Businesses should address these concerns by looking at access from public sidewalks, parking and transportation, access to goods and services, and access to restroom facilities.
If barrier removal is not readily achievable, businesses can take steps, such as providing curb service or home delivery or retrieving merchandise from inaccessible shelves or racks. Additionally, service animals must be allowed in a business, but the care or supervision of a service animal is the responsibility of its owner, not the business.
Finally, businesses must have auxiliary aids available upon request, such as qualified interpreters, telephones compatible with hearing aids, qualified readers, audio recordings, materials in Braille, large print materials, or other effective methods of communicating visual material to people with visual impairments. For example, hotels and inns that provide televisions in five or more guest rooms and hospitals that provide televisions for patient use must have closed-captioned television available upon request for use by a person with impaired hearing.
• ADA Document Portal: www.disability-laws.org
• U.S. Department of Justice ADA home page: www.ada.gov
• ADA Technical Assistance Program: www.adata.org
• Job Accommodation Network: www.jan.wvu.edu/links/adalinks.htm
• United States Access Board: www.access-board.gov
• Disability.gov: www.disability.gov
• U.S. Department of Transportation Federal Transit Administration: www.fta.dot.gov/civilrights/ada/civil_rights_4057.html
• National Disability Rights Network: www.ndrn.org