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Rights of the Disabled

In 1990, Congress passed the Americans with Disabilities Act (ADA). The purpose of the ADA is to eliminate discrimination against disabled individuals, aswell as to provide clear standards to remedy the issues involved in such discrimination. At the time, Congress made several significant findings, including that 43,000,00 Americans possess one or more physical or mental disabilities and that this number will increase as the population ages. Moreover, Congress determined that society has been inclined to isolate and segregate persons with disabilities and that discrimination against such persons remains a serious social problem. Congress further recognized that, unlike individuals who have been discriminated against on the basis of race, color, sex, nationalorigin, religion, or age, persons with disabilities have often lacked legal recourse to redress discrimination against them. Additionally, Congress acknowledged that disabled individuals occupy an inferior status in society due tocharacteristics which are beyond their control. Finally, Congress stated thatthis country's proper goal regarding disabled individuals is to assure equalopportunity, full participation, independent living, and self-sufficiency.
Definition of "Disability"
The ADA defines the term "disability" as a physical or mental impairment which substantially limits at least one major life activity of an individual. Generally, a major life activity is any function that an average individual canperform with little or no trouble, such as caring for oneself, hearing, lifting, seeing, speaking, talking, walking, and working. Examples of "disabilities" are: alcoholism, arthritis, cancer, cerebral palsy, cystic fibrosis, hearing impairment, heart disease, high blood pressure, mental retardation, multiple sclerosis, speech impairment, and visual impairment. Additionally, a "disability" may result from a history of, or a perception as having, a physical or mental impairment which substantially limits a major life activity. In Bragdon v. Abbott, (1998), the United States Supreme Court held that infection with the HIV virus constitutes a "disability," even if the symptomatic stage has not yet been reached. Absent unusual circumstances, pregnancy and related medical conditions are not regarded as "disabilities." Also excluded are homosexuality, bisexuality, transvestism, compulsive gambling, and kleptomania.
The key is that the condition or disease must limit an individual's major life activity. It is therefore possible that two people with the same conditionor disease may be treated differently under the ADA. By way of example, arthritis in a particular individual may result in the limitation of mobility, while arthritis in another individual may manifest itself in only occasional stiffness and soreness. The individual in the first example would be "disabled"since the major life activity of walking had been substantially limited. However, the other individual would not be "disabled" inasmuch as there had not been a substantial limitation on a major life activity.
Title I of the ADA addresses the issue of equal employment opportunities forthe disabled. Basically, the ADA prohibits an employer from discriminating against a disabled person solely on the basis of that person's disability withrespect to the terms, conditions, and privileges of employment. The employer's decisions to hire, promote, fire, establish rates of compensation, and provide training are all covered under the ADA. To fall within the scope of the ADA, an employer must be engaged in an industry affecting interstate commerce(commerce between states) and have 15 or more employees. Employers that are not governed by the ADA are subject to parallel state discrimination laws. Also covered under the ADA are employment agencies, labor organizations, and joint labor-management committees.
A person is protected under the ADA if he/she is a "qualified individual witha disability." This phrase does not include a person who is currently engaged in illegal drug use. However, it does refer to a disabled individual who, with or without accommodation, is able to perform the essential functions of the job. For instance, a person with a visual impairment in one eye would be a"qualified individual with a disability" if he/she is still able to handle the requisite work duties. Conversely, that person would not be a "qualified individual with a disability" if the visual impairment prevents him/her from handling his/her essential job tasks. The person in the first example would fall within the parameters of the ADA while the person in the second example would not.
Prohibited discrimination includes, but is not limited to, the following conduct by an employer: (1) limiting, segregating, or classifying a job applicantor employee in a way which negatively impacts on the opportunities or statusof the job applicant or employee; (2) participating in a contractual relationship with another business which subjects the employer's disabled employeesto discrimination; (3) using standards which have the effect of either discriminating on the ground of disability or perpetuating such discrimination; (4)failing to reasonably accommodate an individual with a disability; (5) usingemployment tests that tend to screen out persons with disabilities; and (6)failing to administer employment tests to individuals with impaired manual, sensory, or speaking skills so that the results accurately reflect the skillsand aptitude of the job applicant or employee.
The ban against discrimination also applies to medical inquiries and examinations. In this regard, an employer is precluded from asking a job applicant asto whether he/she has a disability and from inquiring into the nature and severity of the disability. However, an employer is permitted to inquire into the job applicant's ability to perform the job functions. While the ADA forbids an employer from requiring a preemployment medical examination, it permitsa medical examination after an offer of employment has been made, provided that all new employees are subjected to such an examination and the informationobtained is treated confidentially. For the purpose of the ADA, a test to determine the illegal use of drugs is not considered to be a medical examination. Therefore, an employer is not barred from conducting drug testing on job applicants and employees and from making employment decisions on the basis ofthe test results.
The employer is obligated to make reasonable accommodations with respect to the mental or physical limitations of a "qualified individual with a disability." For example, an employer may provide such a person with a parking space that is in close proximity to the work premises, reassign the person to a vacant position, or modify his/her work schedule. A request for an unreasonable accommodation need not be fulfilled. Moreover, an employer is exempted from the duty of reasonable accommodation if such accommodation would result in an undue hardship, in terms of a significant difficulty or expense. For instance,an employer need not shift the lion's share of the disabled individual's duties to other employees. Additionally, an employer would not be required to grant a disabled individual an indefinite leave of absence, with full compensation and benefits, unless the employer also has a policy of granting such leaves to other employees. The issues of whether a requested accommodation is reasonable and whether the employer would suffer an undue hardship are to be determined by considering the totality of underlying circumstances of each particular situation.
Public Services
Title II of the ADA prohibits governmental entities from discriminating against disabled individuals with respect to their participation in, or receipt of, benefits from public services, programs, or activities. A governmental bodyis required to make reasonable modifications to its rules, policies, or practices so that all of its services, programs, and activities are accessible tothe disabled. Such modifications include the removal of architectural, communication, or transportation barriers or the provision of auxiliary aids and services. For example, wheelchair ramps are typically installed at a public building's points of ingress and egress. The disabled must also have ready access to other parts of a public building, including the bathrooms, drinking fountains, and telephones. All accessible features, such as ramps and elevators,must be kept in good working order. Telecommunication devices (TDDs) shouldbe used to facilitate communication with the hearing impaired. Public transportation systems must be accessible to the disabled, especially those with wheelchairs. However, a governmental entity is not required to supply a disabledindividual with a wheelchair, hearing device, or reading glasses. Neither isit obligated to attend to a disabled individual's personal needs, such as providing assistance with eating.
Public Accommodations
Title III of the ADA bars discrimination by private entities that provide public accommodations and services. Such private entities include, but are not limited to, bars, cleaners, concert halls, convention centers, educational sites, gas stations, hotels, lecture halls, libraries, motels, museums, parks, restaurants, stadiums, stores, theaters, and zoos. It is illegal for these entities to deny an individual the full and equal enjoyment of goods, services,facilities, privileges, advantages, or accommodations solely on the basis ofthat individual's disability. Places of public accommodation are required toremove architectural barriers where the removal can be achieved without unduedifficulty or expense. For example, a restaurant might install an entrance ramp and rearrange tables to facilitate the use of wheelchairs. Along the samelines, a lecture hall might provide a reasonable number of wheelchair seating spaces.
Other Statutes
Several other statutes also protect the rights of disabled individuals. Similar to the ADA, the Rehabilitation Act of 1973, prohibits discrimination on the basis of disability. While the Rehabilitation Act governs only programs andactivities which receive federal funding, the ADA applies to those entitiesthat do not receive federal assistance. The Fair Housing Act of 1968, bars discrimination against disabled individuals with respect to the sale or rentalof a dwelling. Moreover, the Developmentally Disabled Assistance and Bill ofRights Act of 1996, is designed to improve the conditions of those with mental impairments.

Further Readings

  • Filipp, Mark R. Employment Law Answer Book. New York, NY: Panel Publishers, 1998
  • Jasper, Margaret C. Employee Rights in the Workplace. Dobbs Ferry,NY: Oceana Publications, Inc., 1997
  • Johnson, Mary, ed. People With Disabilities Explain It All For You. Louisville, KY: Advocado Press, 1992

Additional topics

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