Know Your Rights Under the Americans with Disabilities
Act (ADA)Presented by: Cyndy Miller
(1973) Section 504 of the Rehab Act(1975) Ind. w Disabilities in Ed Act(1975) Dev. Disabilities Assistance
and Bill of Rights Act(1986) Protection and Advocacy for
Individuals with Mental Illness Act(1990) Americans with Disabilities
Act, amended (2008)(2000) Ticket to Work and Work Incentive Improvement Act(2000) Help America Vote Act
Laws to Protect Individuals with Disabilities
Signed in 1990 Protect civil rights of people
with disabilities Definition of “disability”
broadened in 2008 (ADAAA) U.S. Department of Justice
revised regulations implementing ADAAA in effect March 15, 2011
The Americans With Disabilities Act (ADA)
Prohibits discrimination, requires that businesses provide reasonable accommodations to employees with disabilities and provides that facilities and services be made accessible.
Title I: definition of disability expanded
Titles II and III:◦ Effective communication◦ Examinations and Courses◦ Places of Lodging◦ Service Animals◦ Ticketing◦ Wheelchair and Other Power-Driven Mobility Devices ◦ Detention and Correctional facilities◦ Overview of 2010 ADA Standards for Accessible Design◦ Parking
ADAAA Revised Regulations
Title I: Employment
Title II: State and Local Governments
Title III: Public Accommodations and Commercial Facilities
Title IV: Telecommunications
Title V: Miscellaneous
5 Parts of the ADA
Equal treatment under the law Fairness to individuals, businesses, and the
government Independence Access to facilities and services A diverse, integrated, and welcoming
society for people with disabilities Clear, enforceable standards
Goals of the ADA
Title I of the ADA Employment
Employers are not allowed to discriminate against individual because of a disability
Do not guarantee an individual a job because individual has a disability
Must be able to do the job hired to do, with or without reasonable accommodation
Can be terminated/fired from job even if have a disability
What are the protections under the law?
The ADA protects you from discrimination in all employment practices including:
Hiring Firing Training Pay Promotion Benefits; and Leave
What are my rights under the ADA?
ADA Definitions Qualified Individual—a person who has a
disability who with or without reasonable accommodations can perform the essential functions of the job
Disability—physical or mental impairment which substantially limits one or more major life activity; or is a record of such impairment; or is regarded as having such an impairment
Essential function—a job requirement required to be performed and if removed would fundamentally alter the position
Reasonable Accommodation
Issues
You may never have to tell your employer about your disability.
If you need assistance to do your job, then you will need to tell the employer about your disability to get the assistance you need and why your disability requires the assistance.
This assistance is called a reasonable accommodation.
When do you tell your employer about your disability?
A reasonable accommodation is any change or adjustment in the job, work environment, or the way things are usually done that would allow you to:
◦ Apply for a job◦ Perform essential job functions◦ Enjoy equal access to benefits available to other
individuals in the workplace
What is “reasonable accommodation”?
Job restructuring
Part-time or modified work schedules
Reassignment to a vacant position
Appropriate adjustment or modification of examinations, training materials or policies
Examples of Reasonable Accommodations
Possible accommodations: Breaks to take medication Leave to seek medical treatment or adjust
to medication Adjustments to work schedule Someone to drive to meetings and other
work-related events Work at home
Examples
If driving is an essential function of the job, employer does not have to eliminate it from the position.
◦ Review if an accommodation is available
However, carefully examine whether driving is a job function or simply a way to accomplishing an essential function
Examples—Driver’s license
Example: A qualified sales clerk applied for promotion to assistant manager of a store. The employer promotes someone else claiming an essential function of the job is driving store receipts to the bank.
Because depositing the receipts, not driving, is the actual function of the job, the employer should have determined whether the sales clerk could have done the job with a reasonable accommodation (e.g. having another employee drive her or paying for a taxi)(From EEOC’s Q&As on epilepsy in the workplace (p.8))
Examples—Driver’s license
No magic words--Let your employer know that you need an adjustment or change because of your disability
Put your request in writing!
Request should describe nature of the disability and resulting limitations, the need for an accommodation and the proposed accommodation (if known)
How do I request a reasonable accommodation?
After an accommodation is requested…
The employer, employee and other relevant personnel should enter into an informal and interactive process;
Employers may request limited medical documentation;
The process should take a reasonable amount of time;
Duty to accommodate is ongoing.
Interactive Process
An accommodation does not have to be provided if:
It is unreasonable◦ Requires reallocation of essential job functions◦ Will not enable the employee to be qualified
It results in an undue hardship to the employer; or
Results in a direct threat to the health or safety of the employee or others.
Reasonable Accommodation Limitations
Title II of the ADAState and Local Governments
Prohibits discrimination against qualified individuals with disabilities in all: ◦ Programs◦ Activities◦ Services of public entities
Applies to all State and local governments, their departments and agencies, and any other instrumentalities or special purpose districts
Also covers public transportation
How does the ADA apply to State and local governments?
Make reasonable modifications to their policies, practices, and procedures to allow equal opportunity for individuals with disabilities to participate◦ unless to do so would fundamentally alter the nature of the service,
program, or activity.
Provide auxiliary aids and services, integrated program access through nonstructural and architectural modifications
Public entities do not need to remove all physical barriers in existing buildings as long as programs provided in those buildings are readily accessible to users with disabilities in another facility
All new construction must be accessible
What are the protections under the law?
Olmstead v. L.C., 527 U.S. 581 (1999)
The story: 2 women, Lois Curtis and Elaine Wilson, who had mental illness and developmental disabilities, were voluntarily admitted to the psychiatric unit in the State-run Georgia hospital.
Following the women's medical treatment, mental health professionals stated that each was ready to move to a community-based program.
However, the women remained confined in the institution, each for several years after the initial treatment was concluded due to state budgetary concerns.
Olmstead Decision and the ADA
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Unjustified segregation of persons with disabilities constitutes discrimination in violation of title II of the Americans with Disabilities Act (ADA).
Public entities must provide community-based services to persons with disabilities when:(1) such services are appropriate;
(2) the affected persons do not oppose community-based treatment; and
(3) community-based services can be reasonably accommodated, taking into account the resources available to the public entity and the needs of others who are receiving disability services from the entity.
Olmstead Decision
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U.S. v. Rhode Island –2014 Settlement Agreement◦ Individuals with disabilities who are unnecessarily segregated in
sheltered workshops and facility-based day programs to the exclusion of integrated services, such as supported employment and integrated day services.
U.S. v. State of Florida, 1:13-cv-61576 (S.D. Fla. 2013)◦ The lawsuit alleges that children with disabilities are unnecessarily
segregated in nursing facilities when they could be served in their family homes or other community-based settings.
United States v. State of New York—2013 Settlement Agreement◦ The agreement remedies discrimination by the State in the
administration of its mental health service system and ensures that individuals with mental illness who reside in 23 large adult homes in New York City receive services in the most integrated setting appropriate to their needs consistent with the ADA and Olmstead.
Olmstead in Action
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Private lawsuits◦ Court order to stop discrimination ◦ Attorney’s fees◦ No monetary damages
File complaint with designated federal agency◦ I.e. Department of Justice or Department of
Transportation◦ Monetary damages or civil penalties may be
awarded
Enforcement of Title II
Title III of the ADAPublic Accommodations
Private entity that owns, operates, leases or leases to a place of public accommodation;
Commercial facilities; and Private entities offering examinations and courses
related to educational or occupational certification
Includes wide range of entities including:◦ Restaurants◦ Hotels◦ Theaters◦ Physician offices◦ Day care centers
What are public accommodations?
Public accommodations must:
◦ Provide goods and services in integrated setting
◦ Eliminate unnecessary eligibility standards or rules that deny an equal opportunity to enjoy goods and services
◦ Modify policies, practices, and procedures that deny equal access (unless fundamental alteration)
◦ Furnish auxiliary aids when necessary to ensure effective communication
◦ Remove barriers if readily achievable
Overview of Requirements
◦ Obvious: Violation if a retail store to have a rule to exclude all persons who are deaf Rule is not necessary for provision of the service
◦ No child in swim diapers may swim in pool Policy may need to be modified for a child with
disability
◦ Subtle: Requiring a driver’s license as the only form of identification for purposes of paying by check May discriminate against persons with vision
impairment; alternative identification available
Examples of discrimination in Title III:
Modifications that would fundamentally alter the nature of the services or an undue burden:
◦ Not discriminatory for a physician who specializes in burn patients to refer a patient with a disability to another physician for a broken limb (outside of specialty)
◦ Not all restaurants must have braille menus (if waiters or other employees are available to read the menu)
◦ Retail stores not required to have a sign language interpreter on staff (if can communicate by pen/paper)
Title III does NOT require:
Physical barriers to entering and using existing facilities must be removed when “readily achievable.”
◦ Readily achievable means easily accomplished and able to be carried out without much difficulty or expense.
◦ Examples of barrier removal: Installing ramps Making curb cuts at sidewalks Rearranging tables, chairs, display racks Installing grab bars in toilets
Existing Facilities and Barrier Removal
What is wrong with these?
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If not readily achievable, alternative steps may be taken to make goods and services available.
Examples:◦ Provide goods and services at door or sidewalk◦ Provide home delivery◦ Retrieve merchandise from inaccessible racks◦ Relocate activities to accessible location
Alternatives If not readily achievable
New construction must be accessible
Alterations must be accessible to the maximum extent feasible
◦ Must follow the ADA Accessibility Guidelines
These standards include general design requirements for building and site elements such as parking, accessible routes, ramps, and elevators.
New Construction or Alterations
Private lawsuits◦ Court order to stop discrimination ◦ Attorney’s fees◦ No monetary damages
File complaint with designated federal agency◦ I.e. Department of Justice or Department of
Transportation◦ Monetary damages or civil penalties may be
awarded
Enforcement of Title III
Only dogs are recognized as service animals
◦ Revised regulations also include a separate provision for miniature horses
Dog is individually trained to do work or perform tasks for person with a disability◦ Guiding ◦ Pulling wheelchair◦ Alerting person who is having a seizure◦ Reminding to take medication◦ Calming person with PTSD or anxiety
NOTE: If sole function is to provide comfort or emotional support=NOT a service animal
Service Animals—Title II and III
Title II and Title III entities must allow service animal in all areas where members of public allowed to go
Must be under control of person
Only 2 inquiries allowed:◦ Is the dog a service animal required b/c of
disability◦ What work or task has the dog been trained to
perform
There is no requirement to have certification
Service Animals Cont.
Job Accommodation Network AskJAN.org
U.S. Equal Employment Opportunity Commission www.eeoc.gov
ADA Disability and Business Tech. Asst. Ctr.www.adata.org/dbtac.html
U.S. Department of Justice ADA Home Page www.ada.gov
Resources
Disability Rights Iowa400 East Court Avenue, Suite 300 Des Moines, Iowa 50309Telephone: 515-278-2502 Toll Free: 1-800-779-2502FAX: 515-278-0539 Toll Free TTY: 1-866-483-3342Email: [email protected]
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