Disability Discrimination

Despite the efforts of Congress, until 1990, no federal law outlawed most of the disability discrimination by employers, owners of places of public accommodation, and program administrators. During the late 1980s, two-thirds of employable, working-age, disabled persons in the United States had a job, and many of those who were employed held a job far below their actual capabilities. In the United States in 1990, more than 8 million persons with disabilities who wanted to work were unable to find jobs and were forced to live on welfare and other government subsidies funded by taxpayers.

Disabled individuals faced more obstacles when it came to transportation. Because disabilities often prevent people from driving cars, many with disabilities must rely on buses, trains, and subways. As of 1990, very few public modes of transportation were accessible to those with disabilities. That same year, Congress passed the Americans with Disabilities Act in the hopes of alleviating day-to-day problems faced by those with disabilities.

Employment Discrimination and the ADA Titles I and II of the ADA prohibit employers, employment agencies, labor organizations, and joint labor-management committees, in the private sector and in state and local governments, from discriminating on the basis of disability. At the ADA's effective date in July 1992, the act covered private employers with 25 or more employees; since July 1994, the act has covered private employers with 15 or more employees. All state and local government employers are covered, regardless of their number of employees.

The EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC) is the federal agency charged with overseeing the employment-discrimination provisions of the ADA. That agency administers complaints and enforces the ADA. The act also provides that its powers, remedies, and procedures may be invoked by the EEOC, the U.S. attorney general, and any person alleging illegal discrimination pursuant to the ADA or its underlying regulations. Any party seeking redress for ADA-prohibited discrimination must exhaust certain administrative remedies before instituting a lawsuit.

The employment discrimination outlawed by the ADA may take one of several forms explicitly defined by the act: (1) limiting, segregating, or classifying job applicants or employees in a way that adversely affects the status or opportunities of a disabled individual; (2) entering into a contract or business arrangement that has the effect of discriminating against a disabled individual; (3) implementing administrative procedures or criteria that have the effect of discriminating against a disabled individual; (4) denying a disabled person equal jobs or benefits; (5) failing to make reasonable accommodations to allow those with disabilities to perform their job in the workplace; (6) using criteria that screen, or tend to screen, disabled individuals from the workplace; and (7) administering employment tests for the purpose, or partial purpose, of measuring a job applicant's disabilities. In determining whether illegal discrimination has occurred under the ADA, it is irrelevant that the employer did not intend to discriminate. But discriminatory actions are permissible if they are job related and necessary for the business, and if the required job performance cannot be accomplished with reasonable accommodation.

Reasonable accommodation can be modifications or adjustments to the job application process, to the work environment, or to the manner or circumstances under which the job is performed. The ADA does not require an employer to reasonably accommodate an employee who does not make his or her disability known to the employer, and unless it is obvious, the employer may legally require documented proof of a disability before accommodating it. Examples of reasonable accommodation include making work areas, and nonwork areas such as lunch rooms and rest rooms, accessible; modifying work schedules; modifying equipment such as computers and desks; and providing interpreters for blind or deaf workers. An accommodation that imposes an undue hardship, causing the employer significant difficulty or expense, is not a reasonable accommodation. An accommodation that fundamentally alters the business is also not reasonable. For example, a nightclub would not be forced to provide bright lighting for a visually impaired employee, because bright lighting would significantly alter the nightclub's business. An employer is not responsible for providing personal items of accommodation such as eyeglasses, leg braces, and prostheses, nor is an employer responsible for accommodating current users of illegal drugs. But the ADA does protect rehabilitated drug users and rehabilitated and nonrehabilitated alcoholics,

Title II of the Americans with Disabilities Act requires state and local governments to ensure that modes of public transportation—such as this Oklahoma City Metro Transit bus—are accessible to those with disabilities.
AP/WIDE WORLD PHOTOS

provided that the employees do not threaten the employer's property or the health and safety of others in the workplace. Whether an accommodation is reasonable is, under the ADA, determined on a case-by-case basis, considering all relevant factors including hardship and cost to the employer.

The ADA does not require employers to accommodate every individual with a disability. Only qualified individuals with disabilities—disabled individuals who can perform, with or without reasonable accommodation, the job's essential functions—are protected from discrimination. Two factors are involved in the determination of whether a disabled individual is qualified. First, the employer must determine whether the individual satisfies the job prerequisites at the time of the hiring decision. This determination should not be based on speculative fears that the employee will not be able to function on the job, or that the employer's insurance premiums will rise. Second, the employer must determine whether the individual can perform the job's essential functions with or without reasonable accommodation. The essential functions of a job are tasks that are fundamental as opposed to marginal. Written job descriptions are frequently considered relevant evidence of essential functions.

To ensure that employers do not consider a person's disability at the time of hiring, the ADA prohibits employers from inquiring about disabilities or conducting medical examinations of prospective employees before hiring them. It is illegal to ask questions about medical history, prior WORKERS' COMPENSATION claims, and overall health before a hiring decision is made. The employer is permitted to inquire about the applicant's abilities as they relate to essential or nonessential job functions—although refusing to hire an applicant because of his or her inability to perform a nonessential job function is prohibited. Upon extending a job offer, the employer may require the prospective worker to submit to a medical examination, provided that all prospective workers face the same requirement. In fact, a job offer may be conditioned upon the results of the examination, and the employer may rescind the offer if the examination indicates that the prospective worker would pose a direct threat to health or safety in the workplace, or that he or she would not be able to perform the job's essential functions even with reasonable accommodation. The ADA does not consider tests for illegal drugs to be within its definition of a medical examination; therefore, before extending a job offer, employers may test applicants for illegal drugs—but not prescription drugs or alcohol. An employer may legally test for HIV only after an employment offer has been extended. Even then, the employer may not fire or refuse to hire an individual because of that person's HIV status, unless such discrimination is both related to the job and necessary for the business.

When an employer violates the ADA, the aggrieved party usually is entitled only to equitable relief, such as a court order requiring the construction of wheelchair ramps or the provision of voice-activated computers. Only when the employee shows intentional discrimination may compensatory or punitive damages be awarded. Where the dispute involves the provision of a reasonable accommodation, and the employer made GOOD FAITH efforts to make reasonable accommodation, the court may not award money damages; it may award only equitable relief.

Public Accessibility and the ADA Title II of the ADA requires that state and local government programs and activities be accessible to those with disabilities. Title III of the ADA applies the same requirement to certain private entities that own, lease, or operate places of public accommodation: (1) hotels, motels, and certain other places of lodging; (2) restaurants, bars, and other establishments that serve food or drink; (3) theaters, stadiums, concert halls, and other places of exhibition or entertainment; (4) auditoriums, convention centers, and lecture halls; (5) retail or rental establishments such as grocery stores, bakeries, shopping centers, and hardware stores; (6) self-service laundries, dry cleaners, banks, hair salons, travel services, shoe repair services, gas stations, law offices, accounting offices, pharmacies, doctors' offices, hospitals, and other service establishments; (7) public transit stations and depots; (8) museums, libraries, and galleries; (9) parks, zoos, and other places of recreation; (10) private schools; (11) day care centers, homeless shelters, food banks, and other social-service establishments; and (12) health clubs, gymnasiums, bowling alleys, golf courses, and other places of exercise or recreation. The ADA does not limit its coverage to the size of the public accommodation; if a private entity fits into one of the twelve descriptive categories, it must comply with the ADA accessibility requirements. The ADA does exempt from its coverage some private clubs and religious entities.

When a private entity falls within a class of public accommodation, it must provide reasonable modifications in its practices, policies, or procedures, or auxiliary aids and services, for those with disabilities, unless such modifications would fundamentally alter the nature of the entity or would result in an undue burden of significant difficulty or expense. Title III requires only that those with disabilities be given equal opportunities to achieve the same results as nondisabled individuals. For example, a clothing store need not print price tags in braille so long as a sales clerk is available to read the price tags to a blind shopper. Auxiliary aids, such as closed-captioned televisions for hearingimpaired hotel guests, are required, but this provision is often flexible. Thus, the owner or operator of a public accommodation may often determine the type of auxiliary aid to assist the disabled individual, provided that the chosen aid is effective.

Title III also requires the owners and operators of public accommodation in existing facilities to remove structural, architectural, and communication barriers when such removal is "easily accomplishable and able to be carried out without much difficulty and expense" (42 U.S.C.A. § 12181(9)). To determine whether barrier removal is readily achievable, courts look at the nature and cost of the action needed; the number of people employed at the facility and its financial resources; the action's effect on the facility; and the size, nature, type, and financial resources of the covered entity. Under Title II, state and local governments must remove barriers unless the removal would cause a fundamental alteration to the program or activity, or unless it would cause the government entity an undue financial and administrative burden.

A private individual may enforce the provisions of Title III, as may the U.S. attorney general. To enforce the provisions of Title II, a private individual may file an administrative complaint with the appropriate federal agency (usually the agency that provides federal funding to the public entity that is the subject of the complaint) or the U.S. DEPARTMENT OF JUSTICE, or the individual may file a federal lawsuit.

On May 29, 2001, the U.S. Supreme Court ruled 7-2 that federal disability rights law entitled professional golfer Casey Martin to ride a golf cart among shots while competing in PGA Tour events, PGA Tour, Inc. v. Martin, 532 U.S. 661, 121 S.Ct. 1879, 149 L.Ed.2d 904 (U.S.Or., May 29, 2001) (NO. 00-24). In reaching its decision, the Court addressed two distinct legal issues, ruling that the PGA tour is a "public accommodation" subject to ADA requirements, and that under those requirements Martin's use of a cart was a "reasonable modification." The decision was the first high court case to interpret the nondiscrimination mandate of Title III of the ADA.

The ADA and Public Perception Many individuals with disabilities credit the ADA with helping them to overcome the special challenges that they face from day to day. From the visually impaired social worker who is able to take his licensing test in braille, to the wheelchair user who is able to park her car just a few yards from her office's entrance, the ADA has helped many disabled people to become fully functioning members of society. But not everyone heralds the act, particularly when the price of compliance outweighs the legislation's effectiveness. Business owners complain that they have to make their buildings accessible even when those buildings are never used by disabled individuals. Between 1990 and 1995, local governments within Orange County, Florida, spent more than $2 million on architectural changes to make buildings accessible. The city of Winter Park, Florida, spent approximately $35,000 to make a new tennis facility that would be accessible to the disabled, yet the facility's manager reported that only one disabled person used the building in the first year after it opened.

Other critics of the ADA contend that the law is draining administrative and legal resources. During the first three years following the effective date of the ADA's employment provisions, the EEOC reported a 25 percent increase in its workload owing to ADA-related complaints. About 20 percent of those complaints were found to be without merit. By the early 1990s, the act had done little to improve the employment rate for those with disabilities. According to figures by the National Organization on Disability, a private group, as of December 1993, 31 percent of working-age disabled people were employed, whereas in 1986, prior to the ADA's enactment, 33 percent were employed. More recent figures indicate that employment and opportunities for disabled persons are on the rise.

Some legal commentators argue that the act is new and evolving. As courts interpret the law and Congress fine-tunes it, the ADA's benefits will become clearer. Peter David Blanck, a fellow at the Annenberg Washington Program, has stated that people with disabilities are not the only beneficiaries of the ADA. Businesses have found a new market, and new technology developed to help those with disabilities often helps the nondisabled as well.