The Americans with Disabilities Act:
The Americans with Disabilities Act
It is conservatively estimated that the American with Disabilities Act (ADA), which was signed into law by President George Bush on July 26, 1990, guaranteed first-class citizenship to approximately 43 million Americans whom Congress determined in 1990 as having some type of physical, mental, or emotional disability. In its findings Congress stated that, "historically, society has tended to isolate and segregate individuals with disabilities and despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem."
Congress further stated, "Discrimination against individuals with disabilities persists in such critical areas as employment, housing, public accommodations, education, transportation, communication, recreation, institutionalization, health services, voting, and access to public services." Congress concluded that, "unlike individuals who have experienced discrimination on the basis of race, color, sex, national origin, or age, individuals who have experienced discrimination on the basis of disability have often had no recourse to redress such discrimination." Accordingly, Congress passed the ADA "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities".
The prototypes for the ADA are the 1964 Civil Rights Act, as amended, which prohibits discrimination based upon race, color, sex, religion, and national origin, and Section 504 of the Rehabilitation Act of 1973, which prohibits discrimination against disabled persons by recipients of federal funds and requires under Section 503 that federal contractors who receive contracts of more than $2,500.00 implement an affirmative action plan for the hiring and advancement of disabled workers.
The ADA of 1990 is divided into five major areas:
At the University of South Carolina we are directly affected by the ADA in that we must comply with all the Titles, but most notably Title I which covers employment, Title II which covers public services and Title III which covers public accommodations. At the University of South Carolina, the Office of Equal Opportunity Programs serves as the chief compliance authority for ensuring the University's compliance with the ADA.
- Employment (Title I)
- Public Services (Title II)
- Public Accommodations and Services Provided by Private Entities (Title III)
- Telecommunications (Title IV), and
- Miscellaneous Provisions (Title V), which addresses illegal use of drugs, payment of attorney fees, regulations by the Access Board, technical assistance, and construction.
The Office of Equal Opportunity Programs works very closely with the Office of Disability Services which is a unit of the Division of Student Affairs to insure compliance with all provisions of the ADA. For your review, the Office of Equal Opportunity Programs maintains a complete copy of the ADA and this is available upon request. Should you have a specific question relating to the University of South Carolina's compliance with the ADA, please contact the Office of Equal Opportunity Programs at (803) 777-3854.
We have prepared an overview of the ADA, beginning with Title I (Employment), the area in which most of the formal complaints regarding alleged violations of the ADA have been filed nationally since 1992.
Title I - Employment
Title I of the ADA prohibits discrimination against a "qualified individual with a disability" with regard to terms and conditions of employment including application procedures, and decisions to hire, promote, discharge, and train. Title I requires employers and other covered entities to make reasonable accommodations for a qualified individual with a disability unless such reasonable accommodations would cause an undue hardship.
The U.S. Equal Employment Opportunity Commission ("EEOC") is charged with the enforcement of Title I and has issued implementation and interpretive regulations for the ADA. The South Carolina Human Affairs Commission (SCHAC) also enforces Title I of the ADA in South Carolina as a referral agency of the EEOC.
Powers, Procedures and Remedies Available Under the ADA
The ADA adopts all powers and procedures established in Title VII of the Civil Rights Act of 1964. Therefore, individuals filing a complaint under Title I of the ADA must file a discrimination charge with the EEOC on the federal level and in South Carolina they may elect to file with SCHAC who shall dual file the complaint with the EEOC. Complaints must be filed within 180 days of the alleged discriminatory act or within 300 days in states like South Carolina with approved enforcement agencies.
The ADA has the same remedies that are available under Title VII including reinstatement, back pay, employment, attorneys' fees, jury trials and, where appropriate, compensatory and/or punitive damages.
Who Is Covered By Title I?
Title I covers employers, employment agencies, labor organizations, all state and local governmental agencies, and joint labor-management committees.
Disability: The ADA defines the term disability to include:
- A physical or mental impairment that substantially limits one or more major life activities, such as walking, talking, breathing, learning, thinking, seeing, listening, performing manual tasks, caring for oneself, etc.
- A record of a physical or mental impairment substantially limiting a major life activity, or;
- Being regarded as having a substantially limiting physical or mental impairment.
The ADA specifically excludes current illegal drug use from the definition of disability.
Who Is A Qualified Individual With A Disability?: A "qualified individual with a disability" is an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the job that the individual holds or desires.
What Is A Reasonable Accommodation?: Title I requires employers and other covered entities to make reasonable accommodation to a qualified individual with a disability unless it will cause an undue hardship on the operation of the business. Reasonable accommodation may include:
- making existing facilities accessible to and usable by an individual with a disability.
- rearranging work schedules, restructuring jobs, altering existing equipment, modifying examinations and training materials, providing qualified readers or interpreters and other similar accommodations.
What Is An Undue Hardship?: An action by the employer or other covered entity requiring significant difficulty or expense. Undue hardship is largely determined on a case by case basis and is often determined by the overall financial resources of the covered entity.
What Are The Essential Functions Of A Job?: The regulations implementing the ADA define essential functions of the job to mean a fundamental duty of the position in question. Marginal aspects of the job are not included in this definition. A written description of the job prepared before it is advertised is considered evidence of the essential functions under the implementation regulations.
Title I Prohibitions:
- Title I of the ADA prohibits discrimination against a qualified individual with a disability with regard to job application procedures, hiring, advancement, discharge, compensation, training, and other terms and conditions of employment. Title I provides the following listing of prohibited discrimination.
- Classifying or segregating an applicant or an employee on the basis of a disability that adversely affects the individual's terms and conditions of employment.
- Participating in a contract with a third party that discriminates or has the effect of discriminating against a qualified applicant or employee with a disability.
- Using standards, criteria or methods in making employment decisions that have the effect of discriminating against individuals with a disability or perpetuate discrimination against individuals with a disability.
- Excluding or denying equal jobs or benefits to a qualified individual because he/she is associated with an individual who has a disability.
- Refusing to make reasonable accommodations for the known physical or mental impairments of an otherwise qualified individual with a disability unless the covered entity can demonstrate that reasonable accommodation would cause an undue hardship.
- Denying employment opportunities to a qualified individual with a disability on the basis of a refusal to make reasonable accommodations to the known physical or mental impairments of the applicant or employee.
- Using qualification standards, employment tests or other selection criteria that screen out or tend to screen out individuals with a disability unless the standards are shown to be job related.
- Failing to select and administer employment tests in the most effective manner to ensure that when the test is administered to an applicant or employee with a sensory, manual or speaking disability the test results accurately reflect the factors the test intended to measure rather than the disability of the applicant or employee (except where such skills are the factors the test intends to measure.)
Note: The ADA does not impose any affirmative action obligations upon employers. The ADA prohibits discrimination against a qualified applicant or employee because of their disability.
Title II- Public Services and Transportation
Title II of the ADA prohibits state and local governments from discriminating against disabled people in their programs and activities.
The law requires bus and rail transportation to be accessible to disabled passengers. Air transportation is not covered by the ADA. New public buses and new train cars in commuter, subway, intercity (Amtrak) and light rail systems must be accessible to disabled riders. All new stations and facilities and "key" subway and light rail stations must be made accessible. Where fixed-route and rail bus service is offered, a public transit agency must also offer paratransit service. Title II is enforced by the U.S. Justice Department and the U.S. Transportation Department.
Title III- Public Accommodations
The ADA prohibits privately operated public accommodations from denying goods, programs and services to people based on their disabilities. Covered businesses must accommodate disabled patrons by changing policies and practices, providing auxiliary aids and improving physical accessibility, unless that would impose an undue burden.
New and renovated commercial buildings must be accessible. Existing public accommodations must remove architectural and communications barriers where such removal is "readily achievable."
Title III also requires providers of private transportation services, such as private bus lines and hotel vans, to make their vehicles and facilities accessible. Title III is enforced by the U.S. Justice Department and the U.S. Department of Transportation.
Title IV- Telecommunications
Title IV of the ADA requires telephone companies to provide continuous voice transmission relay services that allow hearing and speech impaired people to communicate over the phone through telecommunications devices for the deaf. In addition, Title IV requires that federally funded television public service messages be close-captioned for hearing impaired viewers. Title IV is enforced by the U.S. Federal Communications Commission.
Title V- Other Provisions
Miscellaneous provisions in Title V require: the U.S. Access Board (formerly the Architectural and Transportation Barriers Compliance Board), to issue accessibility standards; attorney's fees to be awarded to prevailing parties in suits filed under the ADA; and federal agencies to provide technical assistance. Title V states specifically that illegal use of drugs is not a covered disability under the act. It also provides that states are not immune from suits under the ADA and that other federal, state and local laws that provide equal or greater protection to individuals with disabilities are not superseded or limited by the ADA.
For additional information on the ADA or if you would like to attend a pre-scheduled training session on how to comply with the ADA, please contact the Office of Equal Opportunity Programs at (803) 777-3854. Also see Equal Employment Opportunity Commission (EEOC).