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Title II - State and Local Government
Title III - Public Accommodations
What Happens if You Don't Comply ?
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CONSUMER ALERT
No one is an "ADA Expert" or is "ADA Certified", do not believe claims that "experts" can certify that your business is in compliance. ADA information is available free of charge and consulting services should be reasonably priced. Do not fall prey to guarantees, pressure or scare tactics.
The Americans with Disabilities Act has several section or "Titles". The Titles that apply to most employers and businesses are;
Title I of the ADA DOES NOT REQUIRE you to hire an unqualified person with a disability, for that matter it does not require you to hire a person with a disability at all. What Title I says, in the simplest of terms, is that you cannot refuse to hire a qualified person with a disability based on their disability.
So if you want to hire your brother in law over someone with a disability, because he's your brother in law, you still can. You just can't deny a job to a qualified candidate because they use a wheelchair or are blind or deaf or have some type of mental illness. When you think about it the ADA is about hiring the most qualified person for the job and isn't that who you want working for you anyway, with or without a disability ?
Title I covers all aspect of employment including recruitment, hiring, training, promotion, discipline, benefits and termination.
The two biggest requirements of Title I are:
First - There can be NO MEDICAL INQUIRIES made until a conditional offer of employment is made to the applicant. This means that there can be no medical questions on the application or during the interview. After the conditional offer of employment is made, JOB RELATED medical inquiries can be made, including physical and psychological exams (Job Related Only). This is intended to level the playing field and determine who is the most qualified applicant, regardless of disability.
Secondly - An employer must provide a Reasonable Accommodation to an employee or applicant with a disability if it is needed to allow them equal access, opportunity or enjoyment of benefits. This accommodation is based on need and is determined by the employer, hopefully with consideration given to the knowledge and experience of the person with the disability. We always tell people that if a "Yugo" will do the job but the employee wants a "Cadillac" maybe you could both agree on a "Chevy". What we mean is that accommodations don't have to cost a lot of money to be effective.
Some example of Reasonable Accommodation include:
Title II is far reaching, state or local government entities must provide equal access to their services or offer a similar and equitable service to people with disabilities. This means that everything from swimming lessons to 911 calls to municipal meetings is covered.
The right to participate in state and local government services, opportunities, meetings or programs should not be denied because a person has a disability. The ADA requires that physical access, modification to policies and procedures and effective communication is provided. If public transportation is offered by a state or local government entity then it also must be accessible or provide a para-transit system for people with disabilities.
Title III has the greatest effect on must businesses. The basic point on Title III is that businesses that deal directly with the public must either be accessible or offer equivalent services.
Some types of businesses covered would be:
Title III also covers Physical Access and Removal of Structural Barriers. This is addressed in the ADA Accessibility Guidelines (ADAAG) in three sections. It is important to note that NO COVERED BUSINESS IS TOTALLY EXEMPT FROM ADAAG COMPLIANCE
Existing Structures
Structures built BEFORE January 26 1992 are not required to FULLY comply with the ADAAG standards instead they are REQUIRED to remove barriers that are readily achievable. This means without much difficulty or expense or in plain terms if the access problem can be fixed cheaply and easily then it is probably required. This is an ongoing process and the ability to remove barriers should be reviewed as circumstances change.
Alterations and Renovations
If an existing structure is altered or renovated than the altered area MUST COMPLY and, in cases involving Primary Function areas, access improvements to entrances, rest rooms, parking and other path of travel items may also be required.
New Construction
ALL NEW CONSTRUCTION, with very few exceptions, BUILT/PERMITTED AFTER JANUARY 26 1992 MUST COMPLY FULLY WITH THE ADAAG GUIDELINES.
Exception to the ADAAG standards are very limited - Churches, Structures owned by Native American Tribes and very rarely Structural Infeasibility are among the exceptions.
Each Title of the ADA has specific enforcement provisions but it is good to remember that the ADA is a FEDERAL LAW and the US Department of Justice and the Equal Employment Opportunity Commission are the two primary enforcement agencies. Federal FINES AND PENALTIES may be levied.
Civil court action is also among the enforcement options with some sections allowing up to $300,000 dollars in damages.
There are two things that the enforcement section of the ADA does not mention. First is the damage to the reputation to your business if a complaint should be filed, especially if it is for the lack of a simple, low cost solution. The second is the loss of income from the 54 million people with disabilities that cannot purchase your goods and services if you aren't accessible to them
Throughout the ADA mediation and alternative dispute resolution are encouraged.
Wagoner & Associates, Inc. offers many services.
Our services are customized for your business and your needs. We offer our services with the goal of educating businesses on their ADA responsibilities and creating a more accessible community for people with disabilities. Our services are available NATIONWIDE with a focus on the Northeastern United States. Our Rates are Reasonable and some Technical Assistance is Offered Free of Charge.
Contact us today for further details and a cost estimate for services customized for your business.
