Americans with Disabilities

Americans with Disabilities Act July 26, 1990 July 26, 1990 Signed by President George H. W. Bush Signed by President George H. W. Bush Wide ranging civil rights law Wide ranging civil rights law Into effect 1992 Into effect 1992

Prohibits, under certain circumstances, discrimination based on disability Prohibits, under certain circumstances, discrimination based on disability

Gives protection against Americans with disabilities Gives protection against Americans with disabilities Compared with Civil Rights Act of 1964 and how it made discrimination based on race, religion, sex, national origin, and other characteristics illegal Compared with Civil Rights Act of 1964 and how it made discrimination based on race, religion, sex, national origin, and other characteristics illegal

What is a disability? “a physical or mental impairment that substantially limits a major life activity” “a physical or mental impairment that substantially limits a major life activity” s/disabilities s/disabilities s/disabilities s/disabilities

Determination of whether any particular condition is considered a disability is made on a case by case basis Determination of whether any particular condition is considered a disability is made on a case by case basis

Certain conditions are excluded as disabilities such as current substance abuse and transsexuality Certain conditions are excluded as disabilities such as current substance abuse and transsexuality

Title I: Employment Title I: Employment Employer may not discriminate against a qualified individual with a disability Employer may not discriminate against a qualified individual with a disability Job application procedures, hiring, advancement, or discharge of employees, worker’s compensation, job training Job application procedures, hiring, advancement, or discharge of employees, worker’s compensation, job training

Employer would be an employment agency, labor organization, interstate commerce, and having 15 or more workers Employer would be an employment agency, labor organization, interstate commerce, and having 15 or more workers

What would be discrimination? Limiting or classifying a job applicant or employee Limiting or classifying a job applicant or employee Denying employment opportunities to people who truly qualify Denying employment opportunities to people who truly qualify

Not making reasonable accommodations to the known physical or mental limitations of disabled employees Not making reasonable accommodations to the known physical or mental limitations of disabled employees

Not advancing employees with disabilities in the business Not advancing employees with disabilities in the business Not providing needed accommodations in training Not providing needed accommodations in training

Title II: Public Service/Transportation No qualified individual with a disability shall be subjected to discrimination or excluded from the benefits of the services, programs, or activities or a “public entity” No qualified individual with a disability shall be subjected to discrimination or excluded from the benefits of the services, programs, or activities or a “public entity”

What is a “public entity”? Any state or local government or any department or agency Any state or local government or any department or agency

Lack of accessibility or certain services can be considered discrimination, regardless of who it actually affects Lack of accessibility or certain services can be considered discrimination, regardless of who it actually affects

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 discrimination 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 discrimination

Title III:Public Accommodations No individual may be discriminated against on the basis of disability with regards to the full and equal employment of the goods, services, facilities, or accommodations of any place of public accommodation by any person who owns, leases, or operates a place of public accommodation No individual may be discriminated against on the basis of disability with regards to the full and equal employment of the goods, services, facilities, or accommodations of any place of public accommodation by any person who owns, leases, or operates a place of public accommodation

What is “public accommodation”? Most places of lodging (such as inns, hotels) recreation, transportation, education, and dining, along with stores, care providers, and places of public displays Most places of lodging (such as inns, hotels) recreation, transportation, education, and dining, along with stores, care providers, and places of public displays

Standard is one of “readily achievable” Standard is one of “readily achievable” Easily and inexpensively done Easily and inexpensively done

Exceptions Private clubs Private clubs Religious organizations Religious organizations Historical landmarks Historical landmarks

Telecommunications Equivalent services for consumers with disabilities- notably those who are deaf or hard of hearing and those with speech impairments Equivalent services for consumers with disabilities- notably those who are deaf or hard of hearing and those with speech impairments

Installation of public Teletypewriter (TTY) machines and other TDDs (Telecommunications Device for the Deaf) Installation of public Teletypewriter (TTY) machines and other TDDs (Telecommunications Device for the Deaf)

Telecommunications Relay Services (TRS) Telecommunications Relay Services (TRS) Many calls are made over the Internet by consumers today Many calls are made over the Internet by consumers today

May be VRS (video relay services), while others are text calls May be VRS (video relay services), while others are text calls Communication assistants translate between the signed/typed words of a consumer and the spoken words of others Communication assistants translate between the signed/typed words of a consumer and the spoken words of others

Has made it not only possible, by very easy, for people who are deaf, hard of hearing, and/or speech-impaired to call friends and co-workers, order a pizza, or make a doctor appointment Has made it not only possible, by very easy, for people who are deaf, hard of hearing, and/or speech-impaired to call friends and co-workers, order a pizza, or make a doctor appointment

Criticism Conservatives claim that lesser disabilities including clinical depression or minor neck or back pain are being accommodated when they should not be Conservatives claim that lesser disabilities including clinical depression or minor neck or back pain are being accommodated when they should not be

ADA allegedly creates a class of “professional plaintiffs” who make a living out of collecting monetary damages from noncompliant businesses ADA allegedly creates a class of “professional plaintiffs” who make a living out of collecting monetary damages from noncompliant businesses

Even those who support the intent of the law worry that it might have unintended consequences Even those who support the intent of the law worry that it might have unintended consequences

Could the Act create additional legal risks for employers who then try to avoid hiring people with disabilities to avoid the risk? Could the Act create additional legal risks for employers who then try to avoid hiring people with disabilities to avoid the risk?

Researchers claim that there has been a sharp drop in employment among the disabled after passage of the Act Researchers claim that there has been a sharp drop in employment among the disabled after passage of the Act

Some feel that the law is ineffectual- and that even stronger legislation is needed to achieve the Act’s intended goals Some feel that the law is ineffectual- and that even stronger legislation is needed to achieve the Act’s intended goals

Libertarians believe accommodation laws restrict the free market Libertarians believe accommodation laws restrict the free market

ADA Amendment Act (ADAAA) Sept 25, 2008 Sept 25, 2008 Effective Jan 1, 2009 Effective Jan 1, 2009 Supported by more than 220 national organizations Supported by more than 220 national organizations House vote 402 to 17 House vote 402 to 17 Unanimously passed the Senate Unanimously passed the Senate

Why did it need amending? Definition of disability had been based on Rehabilitation Act of 1973 Definition of disability had been based on Rehabilitation Act of 1973 Supreme Court in 1999 started to narrow the definition Supreme Court in 1999 started to narrow the definition

Supreme Court Cases Bragdon v. AbbottBragdon v. Abbott (1998) The Court holds that HIV infection qualifies as a disability under the Americans with Disabilities Act (ADA). Bragdon v. Abbott Murphy v. United Parcel Service, Inc.Murphy v. United Parcel Service, Inc. (1999) In this case, the Court explains how to determine whether an impairment "substantially limits" a major life activity under the Americans with Disabilities Act (ADA). Murphy v. United Parcel Service, Inc.

Sutton v United Air Lines When you determine whether an individual has a disability under the ADA- you have to consider the effects of mitigating measures- corrective lenses, medications, hearing aids, prosthetic devices When you determine whether an individual has a disability under the ADA- you have to consider the effects of mitigating measures- corrective lenses, medications, hearing aids, prosthetic devices Is the impairment “substantially” limiting? Is the impairment “substantially” limiting?

2002- Toyota v Williams Toyota v Williams “Substantially” is the focus “Substantially” is the focus Said it means “considerably” or “to a large degree” Said it means “considerably” or “to a large degree”

“Major life activity” must be something that has central importance to most people’s daily lives “Major life activity” must be something that has central importance to most people’s daily lives

ADAAA states that an impairment that substantially limits one major life activity need not limit other major life activities to be considered a disability ADAAA states that an impairment that substantially limits one major life activity need not limit other major life activities to be considered a disability

Examples of sample accommodations Depression: Depression: Schedules with flex time, part time or job sharing Schedules with flex time, part time or job sharing Time off for medical appointments or support groups Time off for medical appointments or support groups

Break time according to individual needs rather than fixed schedule Break time according to individual needs rather than fixed schedule Physical arrangements to reduce noise or visual distractions (partitions or separate office) Physical arrangements to reduce noise or visual distractions (partitions or separate office) Worker can phone supportive friends, family, professionals during work day Worker can phone supportive friends, family, professionals during work day

Key concept with employees and employers is that the disability must be known by the employer Key concept with employees and employers is that the disability must be known by the employer Employer is forbidden to ask- so employee must confer with employer about it Employer is forbidden to ask- so employee must confer with employer about it It is NOT discrimination if employer wasn’t aware of illness It is NOT discrimination if employer wasn’t aware of illness

Obesity: Obesity: Person must show they have a disability Person must show they have a disability Courts are increasingly willing to consider obesity Courts are increasingly willing to consider obesity

1996: New Hampshire 1996: New Hampshire Teacher claimed she was fired because of her weight- evidence reflected student perceptions based on her size that she was less intelligent Teacher claimed she was fired because of her weight- evidence reflected student perceptions based on her size that she was less intelligent

1997: Pennsylvania 1997: Pennsylvania Man fired- stated former manager had made derogatory comments about weight Man fired- stated former manager had made derogatory comments about weight

Students with Disabilities Public schools must abide by Section 504 of Rehabilitation Act of 1973 and Title II of ADA Public schools must abide by Section 504 of Rehabilitation Act of 1973 and Title II of ADA Prohibit discrimination on basis of disability Prohibit discrimination on basis of disability

Must promote equal access of and participation in programs and services Must promote equal access of and participation in programs and services Students with disabilities receive benefits and services comparable to those given to their nondisabled peers Students with disabilities receive benefits and services comparable to those given to their nondisabled peers

Schools cannot discriminate by denying a student the opportunity to participate from a benefit or service Schools cannot discriminate by denying a student the opportunity to participate from a benefit or service Must provide the opportunity to participate from a benefit or service that is equal to those provided to others Must provide the opportunity to participate from a benefit or service that is equal to those provided to others

Must provide a benefit or service that is as effective as services given to others Must provide a benefit or service that is as effective as services given to others Must not provide a lower quality benefit than those provided others Must not provide a lower quality benefit than those provided others

Children with disabilities must be educated with their nondisabled peers “to the maximum extent appropriate” “removal…from the regular educational environment” occurs “only when the nature or severity of the disability is such that regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.” Children with disabilities must be educated with their nondisabled peers “to the maximum extent appropriate” “removal…from the regular educational environment” occurs “only when the nature or severity of the disability is such that regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.”

Reasonable accommodations Modifying rules, policies or practices, removing architectural or communication barriers, providing aids, services or assistive technology Modifying rules, policies or practices, removing architectural or communication barriers, providing aids, services or assistive technology

For some students the method of teaching some or all of the curriculum may need to be modified For some students the method of teaching some or all of the curriculum may need to be modified Pull out programs, resource rooms, provide services into regular education classes, diluted curriculum in programs Pull out programs, resource rooms, provide services into regular education classes, diluted curriculum in programs