AMERICANS WITH DISABILITIES ACT
TheAmericans with Disabilities Act
Americans with Disabilities Act (ADA) History
Requirements based upon Rehabilitation Act of 1973
State non-discrimination laws (e.g., NYS Executive
(Human Rights) Law, §290, et seq.; NYS Civil Rights Law, §40, et seq.
Quick progress through Congress; emphasis on economic
development.
Definitions
1. People are considered to have a disability and are protected by the ADA if they:
a. have a physical or mental impairment which substantially limits one or more
major life activities, such as walking, talking, seeing, hearing, self-care, learning,
working; or
b. have a record of having had an impairment, such as past mental illness, history of
cancer; or
c. are regarded by others in the community as having an impairment, e.g., a facial
scar or limp may be perceived as evidence of a disability.
Note: Although alcoholism and drug addiction are disabilities, individuals are not
protected under ADA if currently using drugs illegally. Recovered/former addicts are
protected. Employers can discipline employees whose use of alcohol or drugs is
interfering with ability to do a job or is endangering safety of the individual or
others.
Impairments which are short-term in nature or which do not substantially limit an
individual are not considered "disabilities."
Specific exclusions: Homosexuality, bi-sexuality, pedophilia, transvestism,
transsexualism, exhibitionism, voyeurism, kleptomania, pyromania, etc. 2.
Individuals are protected against discrimination on the basis of their association with
others, even if they themselves do not have a disability.
I. Employment -- Title I
29 CFR Part 1630
Employers cannot discriminate against otherwise qualified people with disabilities
who can perform essential job functions, with or without a reasonable
accommodation.
Applies to employers of 15 or more -- state law may apply similar requirements with
lower thresholds.
1. Job descriptions which are written and functional are an essential tool in
evaluating the qualifications of job applicants and in defining the essential functions
of the job which the employer may be required to reasonably accommodate.
2. Pre-employment Inquiries -- Pre-employment inquiries regarding disability are
generally prohibited.
a. An employer may not ask: Do you have a disability? Are you taking any
medication? Have you ever been hospitalized? How many sick days did you have
last year?
b. An employer may ask any question which goes to ability to perform essential job
functions: Can you drive a bus? Can you cook? Can you use a computer?
For affirmative action purposes, an individual may be asked to indicate if they have
a disability. The inquiry must state that:
I. information requested solely for affirmative action reasons;
ii. answer is voluntary and will be kept confidential; and
iii. information provided will not adversely affect chance of getting job.
3. Medical Examinations -- Medical examinations can be conducted only after a
conditional job offer and if administered for all employees in same title.
Psychological exams may be medical exams -- factors include:
a. Administered by health care professional?
b. Interpreted by health care professional?
c. Designed to reveal impairment?
d. Used to measure psychological response rather than ability to do task?
See: EEOC Enforcement Guidance: Preemployment Disability-Related Inquiries and
Medical Examinations under the Americans with Disabilities Act of 1990 (5/14/94).
>p>Drug testing is not a medical exam.
Considerations: BFOQ? Equitable application?
4. Reasonable Accommodations -- Employers must make "reasonable
accommodations" to the known disabilities of all qualified employees and job
applicants for the performance of essential job functions unless the provision of
such accommodations would pose an "undue hardship" on the employer.
Reasonable accommodations can include:
a. conducting job interviews at accessible sites;
b. accommodating in pre-employment testing;
c. making facilities used by employees accessible;
d. job re-structuring;
e. modified work schedules;
f. purchase or modification of equipment, e.g., TTY's, raised desk, lowering
files, large print copies, etc.; and
g. provision of readers, interpreters or other support services.
Reasonable accommodation does not require:
i. hiring two people to do one job;
ii. eliminating/changing essential functions;
iii. lowering quality or productivity standards.
If a current employee is unable to perform essential job functions even with
reasonable accommodations, the employer is required to offer the employee another
comparable position for which the employee is qualified, if such a position is or will
soon be available. Employers are not required to create new positions or remove
other employees to create vacancies.
5. In determining whether an accommodation would impose an "undue hardship",
factors to be considered include:
a. the nature and cost of the accommodation needed;
b. the overall financial resources of the entity involved in the provision of the
reasonable accommodation; the number of persons employed; the effect on
expenses and resources, or the impact otherwise of such accommodation upon the
operation of the entity, including the impact of any applicable collective bargaining
agreement;
c. the type of operation or operations of the entity, including the composition,
structure, and functions of the work force of such entity.
6. Employers must take continuing steps to notify employees of the employer's
obligation to comply with ADA.
7. Discrimination in benefits -- including health insurance -- is prohibited, but an
employer is not required to offer a more comprehensive health insurance policy to
people with disabilities. Pre-existing condition limits and exclusions permissible when
based on actuarial data.
See: EEOC Interim Enforcement Guidance on the Application of the Americans
with Disabilities Act of 1990 to Disability Based Distinctions in Employer Provided
Health Insurance (6/8/93).
8. Enforcement
a. The remedies and procedures under Title I of the ADA are identical to those set
forth in the Civil Rights Act of 1964. Complaints must, in the first instance, be filed
with the EEOC.
I. Although exhaustion of administrative remedies is not a prerequisite to a private
right of action, an individual aggrieved by an action or inaction of a covered entity,
must, in the first instance, file a complaint with the Equal Employment Opportunity
Commission within 180 days of the alleged violation. In states which have a
cooperative agreement under the ADA with EEOC, the time limit for filing is
extended to 300 days. This filing may not be required in some jurisdictions where
the employment discrimination claim is brought as an element of a Title II claim
against a governmental entity.
ii. Subsequent administrative review and/or private right of action is governed by
provisions of the Civil Rights Act of 1964.
b. Remedies include injunctive relief from unlawful employment practices and such
affirmative action as may be appropriate, which may include, but is not limited to,
reinstatement or hiring of employees with or without back pay, reasonable attorneys
fees, or any other equitable relief.
c. Punitive and compensatory damages of up to $300,000 are available as a result of
the Civil Rights Act of 1991.
II.Government Services -- Title II 28 CFR Part 35
Public entities cannot exclude qualified individuals with disabilities from participation
in or deny such individuals the benefits of services, programs or activities of a public entity.
"Public entities" are defined as State and local governments, local public school
districts, Amtrak and commuter authorities under the National Rail Passenger
Service Act.
Subtitle A -- General Requirements
1. Employment -- Government entities must follow the Title I non-discrimination in
employment rules. If a governmental entity has less than 15 employees, comparable
§504 regulations are applicable.
2. Program Accessibility -- All programs and services operated by government must
be accessible >to and usable by people with disabilities in the most integrated
settings. Requirements are consistent with §504 requirements. Auxiliary aids and
services may be required. Existing buildings need not be altered if reasonable
alternative methods of achieving program accessibility can be used.
3. New Construction and Alterations -- All new construction and alterations to
existing facilities must be accessible. Government entities may follow the Uniform
Federal Accessibility Standards (UFAS) or the ADA Accessibility Guidelines
(ADAAG), as well as any applicable State or local requirements.
4. Administrative Requirements
a. entities employing 50 or more must designate an ADA coordinator by 1/26/92;
b. entities employing 50 or more must adopt an ADA grievance procedure by
1/26/92;
c. non-structural changes for program accessibility must be initiated by 1/26/92;
d. public notice of non-discrimination policies must be provided as of 1/26/92;
e. entities employing 50 or more must prepare a transition plan describing structural
changes required for program accessibility by 7/26/92;
f. all entities must conduct a self-evaluation of all programs and services by 1/26/93;
g. structural changes required for program accessibility must be completed by
1/26/95; and
h. entities employing 50 or more must retain documentation of self-evaluation and
transition plans, including individuals consulted, for three years.
5. Enforcement -- Complaints may be filed with agencies designated by Attorney
General. Private rights of action are also authorized. Remedies include making
facilities accessible, providing auxiliary aids or services, modifying policies, and
attorney's fees.
Subtitle B -- Public Transportation
1.New buses and rail vehicles purchased after August 25, 1990, must be
accessible.
2.One car per train must be accessible by July 26, 1995.
3.Existing "key" stations in rapid rail commuter rail and light rail system must be
accessible by July 26, 1993 unless an extension is granted.
4.Comparable paratransit must be provided to individuals who cannot use fixed
route bus service, unless the provision of such service constitutes an undue financial burden, by January 26, 1992.
5.New construction and alterations of existing facilities must be accessible.
III.Public Accommodations - Title III 28 CFR Part 36
Public accommodations must assure people with disabilities an equal opportunity for
the full and equal enjoyment of goods, services, facilities, privileges, advantages or
accommodations in the most appropriate integrated setting.
Public accommodation requirements apply to broad categories of privately operated
facilities/services which are open to the public, including hotels, theaters, doctor's
offices, stadiums,grocery, clothing stores, shopping centers, beauty parlors, funeral
parlors, hospitals, schools, day care centers, golf courses, etc.
1. Policies, practices, and rules must be reasonably modified to accommodate the
needs of people with disabilities unless such modifications are not readily
achievable. Auxiliary aids and services may also be required.
2. New Construction and Alterations
a. New facilities designed and constructed for first occupancy after January 26,
1993 must be accessible, meeting ADAAG as well as any applicable local
requirements.
b. When alterations to primary function areas are made, an accessible path of travel
must be provided to the altered area, and the rest rooms, telephone and drinking
fountains serving the altered area must also be accessible, to the extent that the
added accessibility costs are not disproportionate to the overall alterations costs.
c. Elevators are not required in newly constructed or altered buildings under three
stories or with less than 3,000 square feet per floor, unless the building is a shopping
center, mall, or health provider's office. The Attorney General may determine that
additional categories of such buildings require elevators.
3. Barrier Removal -- Architectural and communication barriers in existing facilities
must be removed if removal is "readily achievable," and can be undertaken without
much difficulty or expense. If not, alternative methods of providing services must be
offered, if those methods are readily achievable.
a. Factors to be considered in determining if an action is "readily achievable" are
similar to those considered to establish "undue hardship" under Title I, although a
significantly reduced burden is imposed, i.e., can barrier removal be undertaken
without much difficulty or expense?
b. Priorities for barrier removal are:
I. access/egress;
ii areas where goods/services are available;
iii restrooms;
iv other areas/services.
6. Remedies -- Complaints may be filed with the Attorney General and/or a private
right of action may be commenced. In addition to injunctive relief, civil penalties of
up to $50,000 for a first v iolation and up to $100,000 for additional violations may
be imposed.
1. After August 25, 1990 new buses seating more than 16 people must be accessible
and other vehicles (except automobiles) operated by private entities must be
accessible or the system in which vehicles are used must provide individuals with
disabilities a level of service equivalent to that provided to the general public
(depending on whether entity primarily engaged in business of transporting people,
whether system is fixed route or demand responsive, and vehicle seating capacity).
2. New "over the road" buses ordered after July 26, 1996 must be accessible if no
waiver is issued.
IV.Telecommunications -- Title IV 47 CFR Parts 0 and 64
1. By July 26, 1993 telephone companies must provide telecommunications relay
services for hearing-impaired and speech-impaired persons 24 hours per day.
2. Public service announcements funded wholly or partially by the federal
government must be closed-captioned.
To The NY State Advocate for the Disabled Office
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ADA
WhoWhere? - The Best Communications Guide on the Web
ADA AND DISABILITTY INFORMATION
DOCUMENTS CENTER
TACONIC RESOURCES
PEOPLE, INC.
NYS TELEPHONE DIRECTORY BY ORGANIZATION
CONGRESSIONAL E MAIL
http://www.omh.state.ny.us/
AMERICAN CIVIL LIBERTIES UNION
NEW YORK ACLU HOMEPAGE
Email:ati@warwick.net
Requirements based upon Rehabilitation Act of 1973
State non-discrimination laws (e.g., NYS Executive
(Human Rights) Law, §290, et seq.; NYS Civil Rights Law, §40, et seq.
Quick progress through Congress; emphasis on economic
development.
Definitions
1. People are considered to have a disability and are protected by the ADA if they:
b. have a record of having had an impairment, such as past mental illness, history of cancer; or
c. are regarded by others in the community as having an impairment, e.g., a facial scar or limp may be perceived as evidence of a disability.
Impairments which are short-term in nature or which do not substantially limit an
individual are not considered "disabilities."
Specific exclusions: Homosexuality, bi-sexuality, pedophilia, transvestism,
transsexualism, exhibitionism, voyeurism, kleptomania, pyromania, etc. 2.
Individuals are protected against discrimination on the basis of their association with
others, even if they themselves do not have a disability.
1. Job descriptions which are written and functional are an essential tool in
evaluating the qualifications of job applicants and in defining the essential functions
of the job which the employer may be required to reasonably accommodate.
2. Pre-employment Inquiries -- Pre-employment inquiries regarding disability are
generally prohibited.
a. An employer may not ask: Do you have a disability? Are you taking any
medication? Have you ever been hospitalized? How many sick days did you have
last year?
b. An employer may ask any question which goes to ability to perform essential job
functions: Can you drive a bus? Can you cook? Can you use a computer?
For affirmative action purposes, an individual may be asked to indicate if they have
a disability. The inquiry must state that:
I. information requested solely for affirmative action reasons;
ii. answer is voluntary and will be kept confidential; and
iii. information provided will not adversely affect chance of getting job.
3. Medical Examinations -- Medical examinations can be conducted only after a
conditional job offer and if administered for all employees in same title.
Psychological exams may be medical exams -- factors include:
See: EEOC Enforcement Guidance: Preemployment Disability-Related Inquiries and
Medical Examinations under the Americans with Disabilities Act of 1990 (5/14/94).
>p>Drug testing is not a medical exam.
Considerations: BFOQ? Equitable application?
4. Reasonable Accommodations -- Employers must make "reasonable
accommodations" to the known disabilities of all qualified employees and job
applicants for the performance of essential job functions unless the provision of
such accommodations would pose an "undue hardship" on the employer.
Reasonable accommodations can include:
a. the nature and cost of the accommodation needed; 6. Employers must take continuing steps to notify employees of the employer's
obligation to comply with ADA.
7. Discrimination in benefits -- including health insurance -- is prohibited, but an
employer is not required to offer a more comprehensive health insurance policy to
people with disabilities. Pre-existing condition limits and exclusions permissible when
based on actuarial data.
See: EEOC Interim Enforcement Guidance on the Application of the Americans
with Disabilities Act of 1990 to Disability Based Distinctions in Employer Provided
Health Insurance (6/8/93).
ii. Subsequent administrative review and/or private right of action is governed by
provisions of the Civil Rights Act of 1964.
b. Remedies include injunctive relief from unlawful employment practices and such
affirmative action as may be appropriate, which may include, but is not limited to,
reinstatement or hiring of employees with or without back pay, reasonable attorneys
fees, or any other equitable relief.
c. Punitive and compensatory damages of up to $300,000 are available as a result of
the Civil Rights Act of 1991.
"Public entities" are defined as State and local governments, local public school
districts, Amtrak and commuter authorities under the National Rail Passenger
Service Act.
3. New Construction and Alterations -- All new construction and alterations to
existing facilities must be accessible. Government entities may follow the Uniform
Federal Accessibility Standards (UFAS) or the ADA Accessibility Guidelines
(ADAAG), as well as any applicable State or local requirements.
f. all entities must conduct a self-evaluation of all programs and services by 1/26/93;
g. structural changes required for program accessibility must be completed by
1/26/95; and
h. entities employing 50 or more must retain documentation of self-evaluation and
transition plans, including individuals consulted, for three years.
5. Enforcement -- Complaints may be filed with agencies designated by Attorney
General. Private rights of action are also authorized. Remedies include making
facilities accessible, providing auxiliary aids or services, modifying policies, and
attorney's fees.
b. When alterations to primary function areas are made, an accessible path of travel
must be provided to the altered area, and the rest rooms, telephone and drinking
fountains serving the altered area must also be accessible, to the extent that the
added accessibility costs are not disproportionate to the overall alterations costs.
c. Elevators are not required in newly constructed or altered buildings under three
stories or with less than 3,000 square feet per floor, unless the building is a shopping
center, mall, or health provider's office. The Attorney General may determine that
additional categories of such buildings require elevators.
3. Barrier Removal -- Architectural and communication barriers in existing facilities
must be removed if removal is "readily achievable," and can be undertaken without
much difficulty or expense. If not, alternative methods of providing services must be
offered, if those methods are readily achievable.
a. Factors to be considered in determining if an action is "readily achievable" are
similar to those considered to establish "undue hardship" under Title I, although a
significantly reduced burden is imposed, i.e., can barrier removal be undertaken
without much difficulty or expense?
b. Priorities for barrier removal are:
I. access/egress;
6. Remedies -- Complaints may be filed with the Attorney General and/or a private
right of action may be commenced. In addition to injunctive relief, civil penalties of
up to $50,000 for a first v iolation and up to $100,000 for additional violations may
be imposed.
1. After August 25, 1990 new buses seating more than 16 people must be accessible
and other vehicles (except automobiles) operated by private entities must be
accessible or the system in which vehicles are used must provide individuals with
disabilities a level of service equivalent to that provided to the general public
(depending on whether entity primarily engaged in business of transporting people,
whether system is fixed route or demand responsive, and vehicle seating capacity).
2. New "over the road" buses ordered after July 26, 1996 must be accessible if no
waiver is issued.
1. By July 26, 1993 telephone companies must provide telecommunications relay
services for hearing-impaired and speech-impaired persons 24 hours per day.
2. Public service announcements funded wholly or partially by the federal
government must be closed-captioned.
Click on the graphic to vote for this
Resource Links
HOME
I. Employment -- Title I
Employers cannot discriminate against otherwise qualified people with disabilities
who can perform essential job functions, with or without a reasonable
accommodation.
Enforcement
a. The remedies and procedures under Title I of the ADA are identical to those set
forth in the Civil Rights Act of 1964. Complaints must, in the first instance, be filed
with the EEOC.
I. Although exhaustion of administrative remedies is not a prerequisite to a private
right of action, an individual aggrieved by an action or inaction of a covered entity,
must, in the first instance, file a complaint with the Equal Employment Opportunity
Commission within 180 days of the alleged violation. In states which have a
cooperative agreement under the ADA with EEOC, the time limit for filing is
extended to 300 days. This filing may not be required in some jurisdictions where
the employment discrimination claim is brought as an element of a Title II claim
against a governmental entity.
II.Government Services -- Title II 28 CFR Part 35
Public entities cannot exclude qualified individuals with disabilities from participation
in or deny such individuals the benefits of services, programs or activities of a public entity.
Subtitle A -- General Requirements
1. Employment -- Government entities must follow the Title I non-discrimination in
employment rules. If a governmental entity has less than 15 employees, comparable
§504 regulations are applicable.
2. Program Accessibility --
All programs and services operated by government must
be accessible >to and usable by people with disabilities in the most integrated
settings. Requirements are consistent with §504 requirements. Auxiliary aids and
services may be required. Existing buildings need not be altered if reasonable
alternative methods of achieving program accessibility can be used.
4. Administrative Requirements
Subtitle B -- Public Transportation
1.New buses and rail vehicles purchased after August 25, 1990, must be
accessible.
III.Public Accommodations - Title III 28 CFR Part 36
Public accommodations must assure people with disabilities an equal opportunity for
the full and equal enjoyment of goods, services, facilities, privileges, advantages or
accommodations in the most appropriate integrated setting.
Public accommodation requirements apply to broad categories of privately operated
facilities/services which are open to the public, including hotels, theaters, doctor's
offices, stadiums,grocery, clothing stores, shopping centers, beauty parlors, funeral
parlors, hospitals, schools, day care centers, golf courses, etc.
1. Policies, practices, and rules must be reasonably modified to accommodate the
needs of people with disabilities unless such modifications are not readily
achievable. Auxiliary aids and services may also be required.
2. New Construction and Alterations
a. New facilities designed and constructed for first occupancy after January 26,
1993 must be accessible, meeting ADAAG as well as any applicable local
requirements.
page as a Starting Point Hot Site.
View Our Guestbook
ADA
WhoWhere? - The Best Communications Guide on the Web
ADA AND DISABILITTY INFORMATION
DOCUMENTS CENTER
TACONIC RESOURCES
PEOPLE, INC.
NYS TELEPHONE DIRECTORY BY ORGANIZATION
CONGRESSIONAL E MAIL
http://www.omh.state.ny.us/
AMERICAN CIVIL LIBERTIES UNION
NEW YORK ACLU HOMEPAGE
ati@warwick.net