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You're listening to the Disability Law Lowdown, Show number 7

Jacquie Brennan: This is Jacquie Brennan. Welcome to the Disability Law Lowdown.

Today we’re going to provide you with an overview of the Americans with Disabilities Act. We’re going to look briefly at all the different titles and all the different definitions that are connected with this important civil rights law. So let’s get started.

The ADA, and remember that’s the Americans with Disabilities Act, is a civil rights statute that was passed on July 26, 1990 and it was designed to protect the rights of individuals with disabilities. Now we did have other disabilities laws prior to the ADA; we had the Architectural Barriers Act of 1968, then in 1970 we had the Urban Mass Transportation Act which included paratransit, in 1973 we had the Rehabilitation Act, in 1986 we had the Air Carrier Access Act, the Fair Housing Act amendments came along in 1988 to include disability, and in 1990 we had the Individuals with Disabilities in Education Act which covered special education. But the ADA is for sure the most comprehensive law that we’ve had that relates to disability.

There are five parts to the ADA, five sections, and these are called titles. Each title covers a different topic. So for the ADA, the first title, Title One, covers employment, Title Two covers state and local government, Title Three covers places of public accommodation, Title Four covers telecommunications, and Title Five has a lot of miscellaneous provisions including provisions covering the awarding of attorney fees if the plaintiff prevails in trial, and provisions that prohibit retaliation against anyone who seeks to advocate for their rights under the ADA. So those are the five titles of the ADA.

Now different entities have different obligations so I want to talk about the entities that do have obligations under the ADA. Under Title One, which has to do with employment, employers who have fifteen or more employees have obligations under Title One of the ADA. Now that is the rule under the federal law, the ADA, but it also true that in some states there are laws that require that employers with fewer than fifteen employees are covered by an analogous state law. So although I’m saying fifteen or more because that’s what the ADA says, it may be that in the state where you are you have to have even fewer employees to be subject to the law that is the ADA.

Under Title Two, entities that have obligations are state and local governmental entities no matter how many employees they have they have obligations. In places of public accommodations of any size. I say any size because one of the myths of the ADA I guess you would say, “well, my store doesn’t have to be accessible because I only have three employees”, but the public accommodations part of the ADA, the Title Three, it doesn’t really matter how many employees you have, you still have to have your business be accessible if it is considered a place of public accommodation. And we’re going to talk a little more about that later, but right now I’m just covering who has obligations.

Now, of course to be covered by the ADA on the individual side, you must be a person who has a disability and as you have probably figured out, there are many different definitions of disability. Even with different laws there are different definitions of disability. In fact, disability is not a medical term at all. It is a legal term and so you have different legal definitions of the term disability. For the Americans with Disabilities Act, an individual with a disability is a person who has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment. This does require individual assessment, but let’s break down this definition some.

The first part is, a physical or mental impairment. There is no list of impairments under the ADA, so we often think is this covered under the ADA or is that? We get lots of questions on our hotline about “is muscular dystrophy a disability under the ADA?” or “is high blood pressure a disability?” “is diabetes a disability?” It is impossible to say about any of those because the definition is such that there is no list that we can turn to unlike, for example, Social Security that has a listing of impairments. There is no list of impairments under the ADA. So most any impairment that you can think of will satisfy that small piece of the definition which is “a physical or mental impairment”. So it can be any physical or mental impairment at this point but, of course, it has to meet all the parts of the definition.

The next part it “that substantially limits”. Now substantially, as some of the listeners will know, is a word that was seized upon by the Supreme Court to really attempt to limit the number of individuals who are covered by the ADA. And of course when you hear a word like substantial it’s very difficult, if not impossible, to really define in a helpful way in terms of what a court is likely to find what it means in any given case. We have had cases where a person had epilepsy and it would seem that a person with epilepsy would definitely be considered to have a disability, but under the ADA, remember, it has to substantially limit a major life activity.

There have been courts who have found that an impairment that, for example, causes a seizure maybe only once a month and the seizure only lasts for five minutes that that’s not substantial enough to be substantially limiting. So this probably the most difficult part of determining whether a person fits under the definition of disability under the ADA. It’s not to determine whether there’s a physical or mental impairment, that’s pretty easy. It’s also pretty easy, though we’ve had a lot of litigation in that area, to determine what is a major life activity, which we’ll get to in a minute. The harder piece of it is in the middle where you come to this substantial limitation.

Now major life activities are defined as activities that are of central importance to the daily lives of most people. So how many major life activities can you name? I usually do this in a group setting and very often people can, if left to their own devices, can come up with nearly all of the ones that have been litigated. Some are very easy like walking, talking, sitting, standing, eating, sleeping. Reproduction can be a major life activity. Waste elimination is a major life activity. We’ve had working as a major life activity, concentrating, learning. Driving was found to not be a major life activity in a case and reading was found to be a major life activity. There is a list in the regulations to the ADA, but it is not an exhaustive list, so we still have cases that are coming along that provide more things that are considered major life activities.

Now the next part of the definition is that “record of”. What does that mean? Having a record of an impairment means just that, that you have a record of an impairment that substantially limits one or more major life activities even though you may not currently have that impairment. It may have been a long term impairment and it may have substantially limited one or more major life activities, so you have that record but you’re not impaired at this point. So if that’s the case and you’re discriminated against based on that record, like maybe someone refuses to hire you because they’re worried about something that might happen in the future even though you don’t have an impairment right now because you did have one and they know about your record of impairment. So that would also be a violation.

The other part is “regarded as” so even if you do not have a physical or mental impairment that substantially limits one or more major life activities but you are regarded as having that then you also will be considered as someone with a disability under the Americans with Disabilities Act. I can’t say this enough. It does require an individual assessment. So it is very difficult to answer those questions when they come to us about “do I have a disability?”, “do I have a disability with this or that?” It requires an individual assessment and there is no list that tells us.

For employment purposes, and remember that employment is under Title One, for employment the individual must meet the definition of disability that we just discussed and be otherwise qualified. That means they have to have the skill, the expertise, and the experience to perform the essential functions of the job with or without reasonable accommodation. That “otherwise qualified” is just an important little thing to mention that doesn’t come up that much anymore, but it was a big fear back in 1990 when the ADA was first passed.

We have some sort of urban myths around that because they said “oh, the ADA is going to force us to hire people with disabilities even if they can’t do the jobs. We’ll have to hire people who don’t have the training to do the job. They’ll have to get the job just because they have a disability.” Of course that was never the case, but that’s some of the push back that was available at the time and has not really turned out to be a problem, of course. I’m an attorney, but if I decided I wanted to go and be a rocket scientist, say, I wanted to work at NASA and I had a disability I couldn’t go down there and say, “ You must hire me to be a rocket scientist because I have a disability and otherwise you’re violating the ADA” because I don’t have the skill, the expertise, the training, the experience to be a rocket scientist. Sadly, I went to law school instead.

Now, we just mentioned a second ago about reasonable accommodations because, in employment, the person must be otherwise qualified to perform the essential functions of the job with or without reasonable accommodation. So what is reasonable accommodation? Well, of course reasonable is always going to be another one of those words, like substantially, that is really hard to define and about which reasonable people may disagree. You can probably think of some very easy accommodations that can be made. A reasonable accommodation is any modification or adjustment to an employment situation that would allow a person with a disability to enjoy that equal employment opportunity, to be able to perform the essential functions of the job.

Essential functions, that’s kind of an important piece of this because the essential functions of a job are the functions for which the job was created. For example, for a bus driver an essential function would be driving a bus. So, if there’s some function that the job was really created to do, then that’s going to be an essential function. They’ll also look at things like the level of specialization you need to perform that function and the number of employees available to perform that task or among whom the task might be distributed.

They’ll also look at not just what a job description might say is an essential function, but whether other people who are in that same job category actually do perform that essential function. In one case, for example, a legal secretary had worked as a secretary for the lawyer for a number of months and one day he said, “you have to drive this down to the courthouse to file it”. And she said, “I am unable to drive because I have a seizure disorder and therefore I can’t drive.” And so he fired her and their reason was that driving was an essential function of the job. Well you can imagine what the EEOC looked at was that the job of legal secretary was certainly not created for driving, that there were other legal secretaries who could drive, or of course that there are services in every big city, which this was, to pick up papers from the law offices and take them to the courthouse and file them and bring them back a file-stamped copy. So it was easy to get around that description as an essential function of the job.

Now reasonable accommodations are something that must be provided by the employer unless it would be an undue hardship to provide the accommodation. Now undue hardship is something that is excessively costly, extensive, substantial, or disruptive, or something that would fundamentally alter the nature or operation of the business. The biggest scare, I guess, about the ADA when it was passed was that this requirement that employers provide reasonable accommodation was going to be very expensive for the employers. It was going to cost employers a lot of money.

The Job Accommodation Network did a survey of more than a thousand employers and they found that for reasonable accommodation costs, fifteen percent of the accommodations had zero cost, that is they were things like maybe a shift change or a flexible schedule or coming in later in the morning or additional time off, or things that didn’t cost anything in terms of the employer spending money. Then fifty-one percent cost less than five hundred dollars. So the majority of accommodations, sixty-six percent, actually, cost less than five hundred dollars because of the fifteen percent that had no cost at all and then fifty-one that cost between a penny and five hundred dollars. They found that most accommodations fell into that group and accommodations could be anything from a different kind of a mouse there at the computer, a different keyboard, a different footrest. They can be things that are basically not very expensive things, things that cost less than five hundred dollars. Twelve percent cost between five hundred and a thousand dollars. And twenty-two percent, only, cost more than a thousand dollars.

Now when it comes to reasonable accommodations, sixty-seven percent of employers said that they believed that by providing the accommodation they had improved interactions between the person with the disability and that person’s coworkers. And fifty-eight percent of employers felt it had increased overall company morale. Eighty-six percent of employers said that they believed they had retained a valued employee through provision of reasonable accommodation. Seventy-one percent said they had increased the employee’s productivity. In general, businesses indicate that supervisors are satisfied with the performance of their employees with disabilities, rating their performance similar to that of their peers without disabilities.

Now when an employee requests a reasonable accommodation, the employer is required to participate in an interactive process with the person with a disability. And that just means that they just can’t say no to a request. If a person requests an accommodation and the employer believes that accommodation is not reasonable, then they have an obligation to discuss with the employee what else might work. They don’t have a requirement to simply provide the most expensive accommodation that there is just because the employee asks for it. They can provide something less than what the employee asks for as long as it is something that will allow the employee to perform the essential function of the job. So that’s why it’s important to have this interactive process. Now sometimes it’s true, and maybe in most cases, the employee will know exactly what it is that they need and the employer will provide that. But sometimes they will not be sure of what they need, they only know that they need something and then that interactive process is more important than ever. But it is always required.

Now employers would be more likely to hire and retain workers if they have a written company policy of non-discrimination that includes disability, if they have written guidelines for dealing with disability issues, including accommodation requests, and if they have more training or better training on disability issues for supervisors and managers.

Now for Title One enforcement, that is through the EEOC and you are required to file a complaint with the EEOC or with your state agency that enforces the law that is analogous to the ADA, and you are required to file with them and the EEOC, if they accept you charge, will engage in a conciliation process to try to resolve the issue. If they are able to do that, that’s great, everybody’s happy. It ends right there. If they are not able to do that, then they will either take your case to court for you or they will will issue you, more likely, a right to sue letter that allows you to pursue the matter in court. From the time you get that right to sue letter you have ninety days to file your claim in state or federal court.

Title Two covers state and local governments. It covers both physical barriers and program barriers. So state and local governments are not allowed to discriminate against individuals with disabilities and they must eliminate both the physical barriers, making their buildings accessible, but also program barriers. This has to do with any state or local government agency or even the people with whom government agencies contract to provide services. I’m going to do a separate podcast on Title Two in a few weeks, so I’m not going to go into a whole lot of additional information about that right now, but just know that Title Two covers state and local governments.

Title Three covers places of public accommodation and places of public accommodation include, well, most any place you can think of that the public goes. It can be movie theaters, beauty shops, barber shops, dry cleaners, the shopping mall, restaurants, bars, swimming pools, public pools I mean, spas, any place that you can think of that the public can go, the laundry mat. I just keep thinking of more places, but the list is, of course, endless because there are so many places. The obligation of public accommodation entities is that they have to be accessible to individuals with disabilities.

Enforcement for Title Two and Title Three can involve a complaint with the Department of Justice. You can file a complaint with the DOJ, but that is not required. Under Title One you have to file with the EEOC or an analogous state agency, but under Titles Two and Three you do not have to file with the Department of Justice, but that is an option that you can do. You can also file a private lawsuit.

I hope that this overview of the ADA has helped a little to put some of the issues that you’ve come across into the context of the law. It is so hard to fit this into the time allowed on a podcast, so I know that in some ways I’ve only hit the high points, especially of Titles Two and Three. We didn’t even go into Title Four. But we will have other podcasts that get into those areas more deeply.

Thanks again for tuning in and have a dazzling day.

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I hope you’ll tune in again to the Disability Law Lowdown which is hosted by the ADA Centers, a national network of ten Disability Business Technical Assistance Centers, DBTACs, that offer training, materials, and technical assistance on the Americans with Disabilities Act and other disability related laws.

You can reach us by calling 1-800-949-4232 (V/TTY).

The ADA Centers are funded by a grant from NIDRR.

Go to our website at dll.ada-podcast.org to listen to out archived podcasts and to get transcripts of the podcasts.

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The Southwest and Rocky Mountain ADA Centers are part of a program of Independent Living Research Utilization at TIRR - Memorial Hermann in Houston, Texas, and is funded by the National Institute on Disability and Rehabilitation Research. If you have questions about disability law or would like to request materials or training, please call 1-800-949-4232. This podcast is protected by the Creative Commons Attribution Non-Commercial No-Derivative-Works 2.5 License. For more information and transcripts, visit www.ada-podcast.com.