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| Enforcing the ADA |
The Americans with Disabilities Act of 1990 added disabilities to the list of characteristics - such as race, color, religion, sex and national origin - that may not be discriminated against. The ADA guarantees equal opportunity for individuals with disabilities in employment, state and local government services, public accommodations, telecommunications and transportation. Among other things, that means those organizations must provide "reasonable accommodations" to enable disabled people to work at or use their facilities.
Years after the law was passed, the definitions of what is reasonable and what qualifies as a disability continue to be the subject of court battles. Here's what you need to know about the law and how you can get help.
Employment
Who's covered? Under federal law, employers with 15 or more employees and state and local employers and employment agencies or unions may not discriminate against qualified individuals with disabilities in hiring or promotions. Many states also have local laws protecting the employees of companies with less than 15 employees. Employers can't discriminate against anyone with a physical or mental impairment that substantially limits one or more of your "major life activities," such as walking, sitting, standing, seeing, hearing, breathing, speaking, performing manual tasks, etc. Employers also can't discriminate against applicants or employees because of their relationship or association with a disabled person. While employers can ask about someone's ability to perform a job, they cannot ask if someone has a disability or make an applicant take tests that tend to screen out people with disabilities.
Who's not covered? Employers may reject applicants or fire employees who pose a threat to the health or safety of others in the workplace. And applicants and employees who use illegal drugs aren't protected from any personnel actions. Plus the ADA doesn't restrict an employer's right to require drug testing.
What's required? Employers must accommodate the disabilities of qualified applicants or employees, unless an undue hardship - either from a financial or administrative standpoint - would result. Factors considered in determining undue hardship include the overall financial resources of the organization, the nature and cost of the accommodation and the impact of providing the accommodation on the particular site or operation of the business. Undue hardship is determined on a case-by-case basis, but it's usually not that difficult or expensive to accommodate an employee with a disability. "Reasonable accommodations" include restructuring the job and modifying equipment, which could mean building a ramp, adding a wheelchair-accessible bathroom, changing a person's work schedule or buying special equipment or devices to assist in the job.
Public and Government Accomodations
All state and local government facilities, services and communications must be adhere to the requirements of section 504 of the Rehabilitation Act of 1973. These requirements mirror the rules under the Americans With Disabilities Act of 1990.
Public accommodations - including restaurants, hotels, theaters, doctors' and lawyers' offices, pharmacies, stores, museums, libraries, parks, supermarkets, shopping malls, health clubs, cruise lines, private schools and day-care centers -may not discriminate because of a disability. Private clubs and religious organizations are exempt.
Government offices, businesses and facilities open to the public must make reasonable changes in policies, practices, and procedures to avoid discrimination and provide full and equal access to disabled persons. This might include building special ramps or bus lifts, enlarging doorways and hallways to accommodate wheelchairs, redesigning seating and parking spaces, installing assistive listening devices and Braille signs, having visual fire alarms, enlarging bathroom stalls and installing grab bars and making sure walks and entrances are level.
Phone companies must offer telephone relay services to individuals who use telecommunications devices for the Deaf (TDD's) or similar assistive listening devices.
Businesses must remove physical barriers if this can be done without too much difficulty or expense. If not, alternative methods of providing the services must be offered, if those methods are readily achievable. For example, a business may not be able to reconfigure stairs against which a blind person might accidentally hit his head, but the business would be expected to place a barrier such as a planter that the blind person would bump into and go around rather than hitting his head on the underside of the staircase.
All new construction in public accommodations, as well as in commercial structures, such as office buildings, must be accessible. Elevators are generally not required in buildings under three stories or with fewer than 3,000 square feet per floor, unless the building is a shopping center, mall or health-care office.
A business must be careful, in making remodeling alterations to areas where the public congregates, to provide an accessible route to the altered area - and the bathrooms, telephones and drinking fountains for that area. But the added accessibility costs can't be disproportionate to the overall cost of the alterations.
Businesses such as hotels that offer transportation generally must provide equivalent service for those with disabilities. New fixed-route vehicles ordered since 1990 that can carry more than 16 passengers must also be accessible.
The Air Carrier Access Act ("ACAA") of 1986 prohibits domestic air carriers from discriminating against disabled persons by refusing transportation or requiring advance notice of a disability. An airline also can't require a disabled person to travel with an attendant unless their impairment is so severe that they couldn't assist in their own evacuation. But an airline can require 48 hours notice and one hour advance check-in for accommodations that require advance preparation, such as an electric wheelchair on an aircraft with fewer than 60 seats, or 10 or more disabled passengers traveling as a group.
Getting Around
New buses ordered since 1990 must be accessible to individuals with disabilities. Transit authorities must provide shared curb-to-curb services or other comparable transportation for those with disabilities who can't use fixed route bus services, unless it is prohibitively expensive.
New bus stations and alterations to existing stations also must be accessible to the extent that the added accessibility costs are not disproportionate to the overall cost of the alterations.
On trains, rail cars ordered since 1990 must be accessible and existing rail systems must have one accessible car per train. New rail stations must be accessible. As with new bus stations, any remodeling must provide access for people with disabilities. Existing "key stations" in rapid rail, commuter rail and light rail systems must be accessible, unless an extension of up to 20 years is granted (30 years, in some cases, for rapid and light rail). All Amtrak stations must be accessible by July 26, 2010.
For privately-operated bus and van companies, freeway buses ordered since 1996 (1997 for small companies) must be accessible and other new vehicles, such as vans, must be accessible, unless the transportation company provides service to individuals with disabilities that is equivalent to that operated for the general public.
Getting Help
The ADA has a provision for "shifting attorney's fees," which means that if you win your case, the person or company you're suing has to pay your attorney's fees. This means that if you have a good case, you should be able to find an attorney to represent you, because they know they'll get paid.
It's a good idea to consult with several attorneys, even if you eventually end up handling the case yourself without an attorney. An attorney can often point out legal remedies other than the ADA, such as other state or federal laws that might apply.
Getting a lawyer involved may make the other side feel threatened by the possibility of a hefty damage award, which could be good incentive for them to settle quickly. That's just one more reason to talk the facts of your case over with one or more attorneys before getting started with litigation. A lawyer can represent you in court, prepare witnesses, process legal paperwork and negotiate with the other side to come up with a solution before you even get to court.
A competent disabilities attorney will have an accessible office and be sensitive to your particular needs as to assistive devices, etc. Many disabilities lawyers belong to the National Employment Lawyers Association, although membership in an association does not guarantee competency in a particular area of law.
If you belong to organizations or support groups for the disabled, ask others in your groups for the names of lawyers they found to be helpful.
Ask any lawyer you interview about his or her experience with cases like yours. How many have they settled? How many have they taken to trial? Have they had experience with cases involving other types of discrimination?
You should also ask any lawyer you talk to for an assessment of your particular case. What would be an expected outcome? Will the lawyer charge a "retainer" fee ahead of time before doing work? How long should the process take, and who will be responsible for the costs of preparing a case? Do you foot the entire bill if you lose at trial?
Anyone feeling discriminated against by an employer can file a complaint with the Equal Employment Opportunity Commission. Remedies include back pay and court orders to stop discrimination.
Individuals may file complaints against state and local governments with federal agencies designated by the Attorney General, or bring private lawsuits.
You can bring a private lawsuit against a public facility to obtain court orders to stop discrimination, but the court can't award money damages to you. Individuals can also file complaints with the Attorney General, who file lawsuits to stop discrimination and obtain money damages and penalties.
Disabled persons who feel a public transit system has discriminated against them may file complaints with the Department of Transportation or file their own lawsuits.
If you believe a privately operated bus or van company has discriminated against you, file a complaint with the Attorney General or bring a private lawsuit under the public accommodations procedures.
Individuals may file complaints against phone companies with the Federal Communications Commission.
What's Next?
Many accommodation problems resolve as soon as the offending business finds out about a disabled person's claim. Sometimes it is necessary to make suggestions to the business about inexpensive ways to restructure the premises or otherwise solve the obstruction problem.
If a business refuses to work with you or your lawyer, it will be necessary to file a court case and begin what's called the "discovery" process. Your lawyer will dig for information about what the business has done to make the facility more access-friendly, and the business lawyer will be entitled to information about your disability and what you would consider to be a reasonable accommodation. These cases can often drag on, especially if the business is not willing to compromise. But a stubborn business risks a judge's ruling that they must make changes to accommodate you and be stuck with paying your attorney's fees as well.
You can find out more about the Americans with Disabilities Act by contacting the ADA Technical Assistance Hotline, operated by the Disability Rights Education and Defense Fund at 1-800-466-4232 (voice/TDD). This Department of Justice funded information line, free to callers, is able to provide technical assistance and informational materials to persons with disabilities, businesses, state and local government agencies, and the general public to help them understand their rights and responsibilities under Titles II (state and local government activities) and III (public accommodations) of the ADA. Persons interested in finding out more about their rights and responsibilities under Title I (employment) of the ADA may call the ADA Disability and Business Technical Assistance Center (DBTAC) at 1-800-949-4232.
Related Web Links:
Job Accommodation Network
Equal Employment Opportunity Commission
This information was provided by the Disability Rights Education and Defense Fund, Inc. (DREDF).
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