FUNDAMENTALS OF THE AMERICANS WITH DISABILITIES ACT

 

The Americans with Disabilities Act (ADA), 42 U.S.C. §§12101 et seq., signed by President George Bush Sr. on July 26, 1990, is landmark legislation to extend civil rights protection to people with disabilities. The ADA prohibits discrimination on the basis of disability in employment, State and local government services, public accommodation and services operated by private entities, public transportation, public accommodations, commercial facilities, and telecommunications.  Its purpose is “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.”  The majority of the ADA’s provisions took effect immediately but the body of law interpreting the ADA is still being created.

 

The term “disability,” with respect to an individual, is defined as “(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.”  The actual language in the regulations defines major life activities as functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working. See 29 C.F.R. § 1630.2(h)(2)(i); 28 C.F.R. § 35.104; 28 C.F.R. § 36.104.  Therefore discrimination against the breathing disabled is a violation of the ADA.

 

Disparate treatment refers to intentional discrimination.  Disparate impact claims involve practices that are neutral in their treatment of different groups but that in fact fall more harshly on one group than another.  Both disparate-treatment and disparate-impact claims are cognizable under the ADA.

 

There are three Titles to the Americans with Disabilities Act (ADA). Title I covers employment, Title II covers public entities including recipients of federal funds and Title III covers public accommodations.

 

TITLE I

 

Title I of the ADA provides that no covered entity shall discriminate against a qualified individual with a disability because of the disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.  The term employer is defined as a person engaged in an industry affecting commerce who has 15 or more employees.

 

Title I defines a “qualified individual with a disability.” Such an individual is “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such person holds or desires.”

 

An employer is required to make a reasonable accommodation to the known disability of a qualified applicant or employee if it would not impose an "undue hardship" on the operation of the employer's business. Undue hardship is defined as an action requiring significant difficulty or expense when considered in light of factors such as an employer's size, financial resources, and the nature and structure of its operation.  Factors to be considered in determining whether an action would create an undue hardship include the nature and cost of the accommodation, the overall financial resources of the facility, the overall financial resources of the covered entity, and the type of operation or operations of the covered entity.

 

“Reasonable accommodation” applies only to Title I and is defined as including making existing facilities readily accessible to and usable by individuals with disabilities, and job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, adjustment of examinations or training materials or policies, provision of qualified readers or interpreters or other similar accommodations.  It is important to understand that “reasonable accommodations” do not apply to public accommodations or policies.  Instead “reasonable modifications” apply to both Title II and Title III.

 

42 U.S.C. § 12117, the statute for enforcement for Title I, describes the powers, remedies and procedures that are available to the Equal Employment Opportunity Commission (EEOC), the enforcement agency for Title I. The regulations issued by the EEOC for Title I are 29 C.F.R. Part 1630.

 

42 U.S.C. § 2000e-5 describes the powers of the EEOC and the time limits for filing charges against an employer. An employee must make a complaint to the EEOC and the EEOC must issue a “right to sue” letter to the employee prior to the employee bringing suit against his or her employer in federal court.  Failure to obtain a “right to sue” letter from the EEOC could result in a case filed under Title I being dismissed.  A “right to sue” letter is not required to sue under Title II or Title III.

 

See also Union Liability Under Title I Of The ADA, http://www.gaspoftexas.com/unionliability.html .

 

 

TITLE II

 

The federal statutes for Title II are 42 U.S.C. §§ 12131-12134 and the federal regulations are 28 C.F.R. Part 35.

 

Title II of the ADA provides that no qualified individual with a disability shall be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity or be subjected to discrimination by any such entity.  “Public entity” is defined as state and local governments, any department or other instrumentality of a state or local government and certain transportation authorities.

 

Section 504 of the Rehabilitation Act of 1973 prohibits discrimination against the disabled by recipients of federal funds, including private organizations, 29 U. S. C. §794(b)(3). Section 203 of the ADA declares that the "remedies, procedures, and rights set forth in [§505(a)(2) of the Rehabilitation Act] shall be the remedies, procedures, and rights this subchapter provides" for violations of §202. 42 U. S. C. §12133.   Therefore any recipient of federal funds can be sued under Title II of the ADA.

 

A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.

 

The Department of Justice regulations for Title II states that each service, program, or activity conducted by a public entity, when viewed in its entirety, must be readily accessible to and usable by individuals with disabilities.

 

TITLE III

 

The federal statutes for Title III are 42 U.S.C. §§ 12181-12183 and the regulations for Title III are 28 C.F.R. Part 36.

 

Title III provides that no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.  Entities that are covered by the term “public accommodation” are listed, and include, among others, hotels, restaurants, theaters, auditoriums, laundromats, museums, parks, zoos, private schools, day care centers, professional offices of health care providers, and gymnasiums.  Reasonable modifications in practices, policies or procedures are required unless they would fundamentally alter the nature of the goods, services, facilities, or privileges or they would result in an undue burden.  An undue burden is defined as an action involving “significant difficulty or expense.”

 

Under Title III a landlord can be held in violation of the ADA for discrimination practiced by the tenant.  For example, an airport operator can be held in violation of the ADA if the Admiral’s Club operated by American Airlines discriminates against the breathing disabled by allowing a policy of permitting smoking within the club.  Similarly, an apartment landlord can be held in violation of the ADA by allowing tobacco smoke from one apartment to infiltrate another apartment causing any breathing disable occupants to be exposed to secondhand smoke.

 

Title III does not apply to private clubs or establishments. In interpreting this provision,  the Department of Justice has noted that courts have been most inclined to find private club status in cases where (1) members exercise a high degree of control over club operations, (2) the membership selection process is highly selective, (3) substantial membership fees are charged, (4) the entity is operated on a nonprofit basis, and (5) the club was not founded specifically to avoid compliance with federal civil rights law. Facilities of a private club lose their exemption, however, to the extent that they are made available for use by nonmembers as places of public accommodation.

 

Title III also contains provisions relating to the prohibition of discrimination in public transportation services provided by private entities.

 

The nondiscrimination mandate of Title III does not require that an entity permit an individual to participate in or benefit from the services of a public accommodation where such an individual poses a direct threat to the health or safety of others.

 

REMEDIES AND DAMAGES

 

The remedies and procedures of Title II of the Civil Rights Act of 1964 are incorporated in Title III of the ADA.  Title II of the Civil Rights Act has generally been interpreted to include injunctive relief and compensatory damages - not punitive damages.  However, if disparate treatment discrimination (intentional) is shown under Title I, both compensatory and punitive damages can be awarded under 42 U.S.C. § 1981a.

 

Section 505 of the ADA provides for attorneys’ fees in “any action or administrative proceeding” under the Act.  The awarding of such attorneys’ fees is only available where there is a judicially sanctioned change in the legal relationship of the parties.  It does not apply when the desired result is achieved because the lawsuit has brought about a voluntary change in the defendant’s conduct.

 

The statutes and regulations cited above can be accessed at http://www.law.cornell.edu/ .

 

Additional information is available at http://www.ada.gov/

and also from the Northeastern University School of Law at

http://tobacco.neu.edu/tobacco_control/resources/ETS/adainfo1.htm .

 

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