Americans with Disabilities Act (ADA)

The Americans with Disabilities Act (ADA) is a revolutionary piece of legislation designed to protect the civil rights of people who have physical and mental disabilities, in a manner similar to that in which previous civil rights laws have protected people of various races, religions, and ethnic backgrounds. The ADA mandates changes in the way that both private businesses and the government conduct business to ensure that all Americans have full access to and can fully participate in every aspect of society. The ADA requires the removal of barriers that deny individuals with disabilities equal opportunity and access to jobs, public accommodations, government services, public transportation, and telecommunications. The law applies to small companies as well as to large ones, so small business owners must be aware of its provisions and how they affect their companies' employment practices, facilities, and products. The Equal Employment Opportunity Commission (EEOC) is the federal agency charged with enforcing the various aspects of the ADA.

It is estimated that 50 million Americans, or one out of every five, have a disability. As defined in the ADA, the term "disability" applies to three categories of individuals: 1) people who have a physical or mental impairment that substantially limits one or more major life activities; 2) people who have a record of an impairment which substantially limits major life activities; and 3) people who may be regarded by others as having such an impairment. For an employee or job applicant to be protected by the ADA, an individual must be "disabled" in one or more of the above manners, be "otherwise qualified" for the position, and be able to perform the essential functions of the job, "with or without accommodation."

PROVISIONS OF THE ADA

President George H. Bush signed the ADA into law on July 26, 1990. The legal structure of the ADA is based on the Civil Rights Act of 1964 and the Rehabilitation Act of 1973. The ADA uses concepts of disability, accessibility, and employment which were introduced in the Architectural Barriers Act of 1968 and the Rehabilitation Act of 1973. These two federal laws were the predecessors of the ADA that mandated a level of accessibility in federally funded buildings and programs. The ADA expanded the requirements of accessibility to the new and existing facilities of privately funded companies for the first time.

The ADA consists of five separate parts or titles: Title I relates to employment; Title II concerns public services; Title III pertains to public accommodations and commercial facilities; Title IV refers to telecommunications; and Title V covers miscellaneous other items.

Title I of the ADA prohibits discrimination in employment against qualified individuals with disabilities. For companies with 25 or more employees, the requirements became effective on July 26, 1992. For employers with between 15 and 24 workers, the requirements became effective on July 26, 1994.

Title II of the ADA prohibits discrimination in programs, services, or activities of public entities (state and local governments), including public transportation operated by public entities. The provisions of Title II which do not involve public transportation became effective on January 26, 1992.

Title III, pertaining to public accommodations and commercial facilities, requires that private businesses that are places of "public accommodation"—including restaurants, health clubs, department stores, convenience stores and specialty shops, and hotels and motels—allow individuals with disabilities to participate equally in the goods and services that they offer. This title also requires that all future construction of commercial facilities—including office buildings, factories, and warehouses—and places of public accommodation be constructed so that the building is accessible to individuals with disabilities.

Title III also mandates modifications in policies, practices, and procedures. Commercial businesses and places of public accommodation are required to provide auxiliary aids and services, and to make accessible transportation available when transportation services are offered. In addition, companies are required to remove architectural and communications barriers and to comply with ADA in any ongoing or new construction. The Act stipulates that all fixed-route or on-demand transportation services—such as hotel-to-airport and other shuttle services—be accessible to persons in wheelchairs and other disabled individuals.

Title IV of the ADA requires telephone companies to make relay services available for persons with hearing and speech impairments.

Title V ties the ADA to the Civil Rights Act of 1974 and its amendments. It includes a variety of miscellaneous legal and technical provisions, including one that stipulates that the ADA does not override or limit the remedies, rights, or procedures of any federal, state, or local law which provides greater or equal protection for the rights of individuals with disabilities.

The ADA draws an important distinction between the terms "reasonable accommodations" and "readily achievable." For small businesses and other employers, no modifications to their facilities must be undertaken to fulfill the requirements of the ADA until a qualified individual with a disability has been hired. At that point, "reasonable accommodations" must be made unless they impose a significant difficulty or expense. In contrast, the terminology "readily achievable" refers to business obligations to clients or guests and applies to actions that can be accomplished without much difficulty or expense. "Readily achievable" modifications must be made in anticipation of a disabled guest's or client's needs, before he or she ever arrives on the premises.

Compliance with the various provisions of the Americans with Disabilities Act also lies with both landlord and tenant, so either or both parties may be held legally liable for violations of the ADA. Assignation of ADA responsibilities is generally made via the lease agreement. Small business owners who lease their office space or other place of business, then, should examine these agreements closely.

THE ADA AND THE MENTALLY DISABLED

The fastest-growing area of legal activity relating to the Americans with Disabilities Act concerns mentally disabled employees. Claims that businesses failed to accommodate their employees' psychological problems according to the provisions of the ADA grew rapidly in the late 1990s but stabilized in the early years of the 2000s at around 13 to 14 percent of all ADA claims received by the Equal Employment Opportunity Commission. Under the original language of the ADA, the Act applied a higher standard for legal redress to individuals whose disabilities stemmed from "any mental or psychological disorder." But legislative efforts to eliminate this higher standard have intensified in recent years.

Problems associated with mentally disabled employees may include workplace socialization difficulties, limited stamina, irregular attendance, difficulty dealing with stress or criticism, and limited attention spans. But many experts in both the mental health and business fields insist that the mentally disabled can be valuable additions to the workforce if companies provide appropriate accommodations.

One valuable tool that business owners and managers can utilize in establishing and maintaining a productive work environment for mentally disabled employees is the EEOC Enforcement Guidance, a comprehensive legal guidebook issued in 1997. As Business Horizons points out, the Guidance stipulates that "traits or behaviors are not, in themselves, mental impairments. This means that stress does not automatically indicate a mental impairment, although it may be a symptom. Similarly, such traits as irritability, chronic lateness, and poor judgement are not, in themselves, mental impairments, although they may be linked to them." Legitimate mental disabilities do, however, include major depression, bipolar disorder, various anxiety disorders, schizophrenia, mental retardation, and special learning disorders.

Under the ADA, companies employing mentally disabled individuals are not responsible for every aspect of the employees' behavior. For instance, they are not required to relieve employees of work responsibilities or excuse them from violations of established work policies. Nor are they required to employ workers who are deemed a safety threat. Moreover, employers are not legally responsible for mental disabilities of which they are unaware.

But employers are required under ADA law to make "reasonable accommodations" for mentally disabled employees. These may include leaves of absence; minor modifications in work policy, supervision, or job position; or flexible work schedules. "Although the nature or form of accommodation is up to the employer, and is only 'reasonable' if it helps the employee do a better job, in some instances the employer might wish to consider professional assistance in the communication process," wrote Robert Schwartz, Frederick Post, and Jack Simonetti in Business Horizons. "Managers should also verify that the condition qualifies as a psychiatric disability and whether the person can perform the job's essential functions with or without accommodation. Management can request reasonable documentation from a health care professional about the disability and the need for accommodations."

Compliance with the ADA's mental disability provisions can help companies retain productive employees and protect themselves from legal peril. But "even beyond mere compliance, socially responsible businesses may elect to embrace these legal mandates as changes that advance the common good of society," noted Schwartz, Post, and Simonetti. "By doing so, they would be helping millions of mentally ill citizens become gainfully employed and saving society billions of government dollars spent supporting the presently unemployed mentally ill."

THE ADA IN PRACTICE

Since the Americans with Disabilities Act was signed into law in 1990, its provisions, enforcement measures, and effectiveness have all come under scrutiny. Supporters have credited the ADA with improving the quality of life of millions of disabled citizens and opening new economic opportunities for disabled workers across the nation. In addition, C.C. Sullivan noted in Building Design and Construction that "the landmark civil rights law changed the way U.S. businesses and institutions understand the rights and abilities of disabled citizens." But Sullivan also voiced a common lament among business owners and managers that "the ADA's open-ended, murky language has been a decade-long minefield of confusion and litigation." Indeed, even supporters of the Act admit that efforts to clarify various provisions of the ADA—now underway—are needed to reduce litigation.

Critics of the ADA—in its current incarnation at least—also note that employment among people with disabilities was lower in the late 1990s, a period of great economic expansion in the United States, than it was when it was passed in 1990. Measuring unemployment is a difficult task in the best of conditions. Measuring the unemployment rate for disabled people is more difficult yet. People often stop looking for employment after an extended and unsuccessful search. The act of giving up on job searching removes a person from the roles of the unemployed. The most recent data available on the unemployment rate for disabled people dates back to 2000 when, according to the U.S. Department of Labor, the rate at which disabled Americans were unemployed stood at approximately 30 percent, more than six times higher than the nation's overall unemployment rate.

Some observers attribute these high rates of unemployment, a decade after the ADA passed, to lax ADA compliance and enforcement efforts by federal agencies charged with seeing that the Act's provisions are carried out. Another factor contributing to the seemingly negligible impact of the ADA on employment rates for disabled people has to do with demographics. As the large baby boom generation ages, many of its members are dropping out of the workforce before the age of retirement. Of these, a very large percentage is departing the workforce based on disability, according to a 2004 Congressional Budget Office report on the subject entitled Disability and Retirement: The Early Exit of Baby Boomers from the Labor Force.

Whatever difficulties exist in tracking and measuring the benefits that the ADA has had on increasing accessibility for disabled Americans, attention has been drawn to the subject of disability in American. Across the society, efforts to comply with the law are being made, in the private sector as well as the public sector, by small organizations as well as large. As time passes and data are collected, more analysis of how effective efforts have been to more thoroughly integrate disabled Americans into all aspects of social life will be possible.

see also Disabled Customers

BIBLIOGRAPHY

Colker, Ruth Disability Pendulum. NYU Press, May 2005.

DeLeire, Thomas. "The Unintended Consequences of the Americans with Disabilities Act." Regulation. Winter 2000.

"Finding Mediation for ADA Disputes." Dallas Business Journal. 8 September 2000.

Hofius, Julie. "Guidelines Define Discrimination Against the Disabled." Tampa Bay Business Journal. 8 September 2000.

Holtz-Eakin, Douglas. Disability and Retirement: The Early Exit of Baby Boomers from the Labor Force. November 2004.

Leonard, Bill. "New Report Criticizes ADA Enforcement Efforts." HRMagazine. September 2000.

National Council on Disability. Promises to Keep: A Decade of Federal Enforcement of the Americans with Disabilities Act. 2000.

"Navigating the ADA and Disability Maze." HR Focus. July 2000.

Office on the Americans with Disabilities Act.U.S. Department of Justice. Civil Rights Division. The Americans with Disabilities Act-Title II Technical Assistance Manual. n.d.

Schwartz, Robert H. et. al. "The ADA and the Mentally Disabled: What Must Firms Do?" Business Horizons. July 2000.

"Special Report ADA: The Case for Unlimited Access." Market Event. 15 June 2005.

Sullivan, C.C. "ADA's Contentious Decade." Building Design and Construction. September 2000.

"Work for All." T&D. January 2003.

                                Hillstrom, Northern Lights

                                 updated by Magee, ECDI

Americans with Disabilities Act

Definition

The Americans with Disabilities Act (ADA) was a bill passed by the United States Congress signed into law by President George Bush on July 26, 1990.

Description

The purpose of the ADA was to make society more accessible to people with disabilities. The ADA applies to qualified individuals with disabilities who (1) have physical or mental impairments that substantially limit one or more major life activities; (2) have a record of such impairments; or (3) are regarded as having such impairments. In addition, the ADA protects persons from discrimination based on an association or relationship with an individual with a disability.

A qualified individual with a disability is defined as a person who meets legitimate skill, experience, education, or other requirements for a position, and who is able to perform the essential functions of the position with or without reasonable accommodation. Requiring that an individual be capable of performing essential functions assures that such an individual will not be disqualified simply due to an inability to perform marginal job functions. If the individual is qualified to perform essential job functions, except for limitations caused by a disability, the employer must consider whether the individual could perform these functions with a reasonable accommodation. A written job description, prepared prior to advertising or interviewing applicants for a job, may be considered evidence of the job's essential functions.

Examples of major life activities may include seeing, hearing , speaking, walking, breathing, performing manual tasks, learning, self-care, and working. The ADA covers, for instance, individuals with epilepsy, paralysis , HIV, AIDS , substantial hearing or vision impairment, mental retardation, or specific learning disabilities. It also covers the individual with a record of a disability— for example, a person who has recovered from cancer or mental illness.

The ADA protects individuals who are regarded as having a substantially limiting impairment, even though they may not have such an impairment. For example, the ADA protects a qualified individual with a physical disfigurement from being denied employment because an employer is concerned how customers or coworkers might react.

The ADA also protects individuals from company or organization actions based on assumptions that a employee/member's relationship with a person with a disability would affect his or her job performance, and from actions resulting from bias or misinformation concerning certain disabilities. For example, the ADA protects a person whose spouse has a disability from being denied employment because the employer assumes that the applicant would require excessive leave to care for the spouse. The individual who is involved in volunteer work with people who have AIDS is also protected from employment discrimination by the ADA, if such discrimination is motivated by that relationship or association.

Civil rights protections similar to other legislation that provides protection on the basis of race, color, sex, national origin, age, and religion are also provided by the ADA; it also guarantees equal opportunity for individuals with disabilities in public accommodations, employment, transportation, government services, and telecommunications. Discrimination in all employment practices, including job application procedures, hiring, firing, advancement, compensation, training, recruitment, advertising, tenure, layoff, leave, fringe benefits, and all other employment-related activities, is controlled by the ADA.

With regard to both private and public sector employment, including state and local government services, companies with 15 or more employees are also subject to the ADA. Specifically, businesses must accommodate employees or customers with disabilities unless doing so represents an undue hardship or a direct threat to the health or safety of others.

Although the ADA is intended to protect those with disabilities from discrimination, employers are not expected to give preference to a qualified applicant with a disability over other applicants. An employer remains free to select the most qualified applicant available and to make decisions based on reasons unrelated to a disability.

Financial assistance for employers

To enable smaller employers to make reasonable accommodations, a special tax credit is available. A tax credit of up to $5,000 per year for accommodations, made to comply with the ADA, may be taken by an eligible small business. A full tax deduction of up to $15,000 per year is available to any business for expenses incurred during the removal of qualified architectural or transportation barriers. Covered expenses include removing barriers created by steps, narrow doors, inaccessible parking spaces, restroom facilities, and transportation vehicles.

Enforcement

The ADA's employment provisions are enforced under the same procedures now applicable to race, color, sex, national origin, and religious discrimination under title VII of the Civil Rights Act of 1964 and the Civil Rights Act of 1991. Available remedies include hiring, reinstatement, promotion, back pay, front pay, restored benefits, reasonable accommodation, attorneys' fees, expert witness fees, and court costs. Compensatory and punitive damages also may be available in cases of intentional discrimination or where an employer fails to make a good faith effort to provide a reasonable accommodation.

Viewpoints

Despite the ADA's laudable intentions, it is not without critics. It is pointed out by those who find fault with the ADA that its definitions are too broad, vague, or illdefined. Others suggest that unnecessary litigation has been spawned by the ADA, which has not been effective in moving those with disabilities from welfare to the workforce, and requires employers to shoulder burdensome costs to accommodate individuals with disabilities despite available tax credits available from the federal government.

American Disabilities Act defenders point out an example of a recent study reporting that companies' insurance costs rarely rise because of hiring individuals with disabilities. Obvious benefits generated by the ADA are also observed by supporters. Among these benefits are increased attention to pervasive discrimination against and widespread unemployment of people with disabilities, and their willingness and potential to contribute to society. Stereotypes about people with disabilities have been revealed by studies. It is clear that people with disabilities are hired less and fired more than other employees.

Professional implications

Medical examinations

According to the ADA, employers may conduct employee medical examinations when there is evidence of a job performance or safety problem, when it is required by federal law, when it is necessary to determine an individual's fitness to perform a particular job, or when voluntary examinations are part of employee health programs. However, information from medical examinations must be kept confidential. According to the ADA,

testing for illegal drug use is not considered part of a medical examination.

An employer may not ask or require an applicant to take a medical examination before extending a job offer. Furthermore, pre-employment inquiries about a disability or the nature or severity of a disability cannot be made by an employer. However, questions may be asked by the employer about the individual's ability to perform specific job functions. In addition, an individual with a disability may be asked by an employer to describe or demonstrate how he or she would perform such functions.

An employer may qualify a job offer based on a satisfactory post-offer medical examination or medical inquiry, provided this is required of all employees in the same job category. A post-offer examination or inquiry does not have to be job related.

In the event that a post-offer medical examination or inquiry reveals a disability and the individual is not hired, the reason for the rejection must be job related. An employer must show that reasonable accommodations were not available to enable the individual to perform the essential job functions, or that such accommodations would have imposed an undue hardship. A post-offer medical examination may disqualify an individual. If the employer can demonstrate that a direct threat in the workplace—that is, that a significant risk or substantial harm to the health or safety of the individual would also pose a direct threat in the workplace—a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced below the direct threat level through reasonable accommodation. Such a disqualification must be job related and consistent with business necessity. In addition, an individual with a disability who is able to perform essential job functions may not be disqualified due to speculation that the disability may cause a risk of future injury.

Reasonable accommodation

A reasonable accommodation is any modification or adjustment to a job or the work environment that enables a qualified applicant or employee with a disability to participate in the application process or to perform essential job functions. A reasonable accommodation includes adjustments to assure that a qualified individual with a disability is provided with the same employment rights and privileges extended to employees without disabilities.

Reasonable accommodation may include making existing facilities used by employees readily accessible to, and usable by, an individual with a disability. In addition, it may involve restructuring a job; modifying work schedules; acquiring or modifying equipment; providing qualified readers or interpreters; or appropriately modifying examinations, training, or other programs. Reasonable accommodation also may include reassigning a current employee to a vacant position for which he or she is qualified, if the person is unable to do the original job because of a disability even with an accommodation. However, an employer is not obligated to find a position for an applicant who is not qualified for the position sought, nor are employers required to lower quality or quantity standards as an accommodation.

Appropriate accommodation decisions must be based on the facts in each case—that is, whether the accommodation will provide an opportunity for a person with a disability to achieve the same level of performance and the potential to enjoy benefits equal to those of a person without a disability. However, the accommodation does not have to ensure equal results or provide exactly the same benefits.

An employer is only required to accommodate a known disability of a qualified applicant or employee. The requirement is typically initiated by a request from an individual with a disability. Accommodations must be made on an individual basis since the nature and extent of a disabling condition and the requirements of a job vary with each case. If the individual does not request an accommodation, the employer is not obligated to provide one except where an individual's known disability impairs the ability to know of, or effectively communicate a need for, an accommodation obvious to the employer. If an appropriate accommodation is requested by a person with a disability (but not suggested by the employer, who cannot "suggest" this), the employer and the individual should work together to identify one. There are a number of resources that provide assistance without cost.

An employer is not required to make an accommodation if it would impose an undue hardship on the employer's business. Undue hardship is defined as an "action requiring significant difficulty or expense." This includes the nature and cost of the accommodation in relation to the size, resources, nature, and structure of the employer's operation. Undue hardship is determined on an individual basis. In general, a larger employer with greater resources would be expected to make accommodations requiring greater effort or expense than a smaller employer with fewer resources.

If an accommodation represents an undue hardship, the employer must try to identify another accommodation that will not pose such a hardship. Also, if the cost of an accommodation would impose an undue hardship on the employer, the individual with a disability should be given the option of paying that portion of the cost that would constitute an undue hardship or provide the accommodation.

The employer is obligated to provide access for an individual applicant to participate in the job application process, and for an individual employee with a disability to perform the essential functions of the job, including access to a building, the work site, necessary equipment, and all facilities used by employees.

However, an employer is not required to make existing facilities accessible until an employee with a disability needs an accommodation. The employer does not have to make changes to provide access in places or facilities that will not be used by that individual for employment-related activities or benefits.

Testing

Accommodations may be needed to assure that tests or examinations measure the actual ability of an individual to perform job functions, rather than reflect limitations caused by the disability. Tests should be given to people who have sensory, speaking, or manual impairments in a manner that does not require the use of the impaired skill, unless the test is designed to measure a job-related skill.

Resources

PERIODICALS

Anonymous. "Your Rights." Accent on Living 44 no. 4 (Spring 2000): 38 39.

Clegg, R." The costly compassion of the ADA." The Public Interest (July 15, 1999).

Fisher, A." Readers Weigh in on the ADA and Finding Mentors." Fortune 140 no. 1 (July 5, 1999): 192.

Goldfein, R. and S. Velazquez. "AIDS and the ADA: Protection from Perception." Trial 35 no. 10 (October 1999): 42-45.

Hall, J. and D. Hatch. "ADA May Require Reassignment to Vacant Job." Workforce 78 no. 9 (September 1999): 94.

Kazanjian, L. and S. Weinhaus. "Should Correctable Conditions Count as Disabilities Under the ADA?" Business and Health 17 no. 8 (August 1999): 47-48.

Shellenbarger, S. "A Little-Known Part of the Disabilities Act Protects Caregivers." Wall Street Journal (August 23,2000).

Van Detta, J. A. "Typhoid Mary Meets the ADA: A Case Study of the Direct Threat Standard Under the Americans with Disabilities Act." Harvard Journal of Law and Public Policy 27 no. 3 (Summer 1999): 849-958.

ORGANIZATIONS

Americans with Disabilities Act Document Center. <http://janweb.icdi.wvu.edu/kinder/index.htm>.

Americans with Disabilities Act of 1990, 42 U. S. C. 12101-12213 (1990). <http://www.usdoj.gov/crt/ada/pubs/ada.txt>.

U.S. Department of Justice. Americans with Disabilities ADA Homepage. <http://www.usdoj.gov/crt/ada/adahom1.htm>.

Bill Asenjo, M.S., C.R.C.

americans with Disabilities act (1990)

Ruth Colker

ADA Title I provides that: No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual 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.

ADA Title II provides that: [N]o qualified individual with a disability shall, by reason of such disability, 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.

ADA 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.

The term disability 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 Americans with Disabilities Act (ADA) (P.L. 108-23), enacted by Congress in 1990, forbids discrimination against individuals with disabilities. The act consists of three major provisions, called "titles": Title I prohibits discrimination in public or private employment; Title II prohibits discrimination at public entities (like public universities or hospitals); and Title III prohibits discrimination at places of public accommodation (like hotels and restaurants). The ADA extended existing prohibitions against discrimination entities that receive federal financial assistance, like public parks, to private entities like privately owned recreational facilities.

In general, the statute prohibits discrimination against qualified individuals with disabilities. In order to be qualified, an individual must be able to engage in the activity in question with "reasonable accommodation." A reasonable accommodation might be a modification in a rule or procedure, or the provision of an auxiliary aid. Whether an accommodation is "reasonable" will rest, in part, on whether it is unduly expensive. Which accommodations are reasonable varies throughout the statute, depending on whether one is suing under Titles I, II, or III. Not all individuals with disabilities, however, require accommodations to engage in programs or activities. Often, they simply need an entity to provide nondiscriminatory treatment by, for example, ending their ban on participation by individuals with disabilities.

The statute also provides various "defenses," or grounds on which a person or entity can legally discriminate against an individual with a disability. One of the most important defenses is the "direct threat" defense. An employer can refrain from hiring an individual not merely because the individual might cause harm to others but because the individual may cause harm to him- or herself through the employment in question. For example, in 2002 the Supreme Court ruled in Chevron v. Echabazal that the employer could refrain from employing a person out of concern that working conditions would exacerbate his liver disease.

CONSTITUTIONAL BASIS FOR THE ACT

The constitutional basis for the ADA is the commerce clause authority given to Congress, as well as its authority under section 5 of the Fourteenth Amendment. Under section 5, Congress has the authority to enact legislation to enforce the Fourteenth Amendment's equal protection or due process clause. However, Supreme Court rulings in the years after ADA was enacted challenged the act's constitutionality under both the commerce clause and section 5. In 2001 the Supreme Court ruled in Board of Trustees v. Garrett that Congress could not constitutionally create a private right of action for monetary damages against the state involving employment discrimination under ADA Title I. In other words, a private individual could not bring an employment discrimination action in federal court for back pay or damages due to disability discrimination by the state. Numerous lower courts have extended that holding to ADA Title II, ruling more broadly that Congress does not have the authority to create a private right of action against the states to remedy disability discrimination in the nonemployment context. It is expected that the Supreme Court will ultimately resolve this issue.

Even if the Supreme Court eventually rules that Congress does not have the constitutional authority to create a private right of action against the states to remedy disability discrimination, the United States Department of Justice can still enforce the ADA against the states. Sovereign immunity principles protect the state from suit by private individuals. However, these principles do not apply when the federal government sues the state on behalf of an aggrieved individual (an individual with a claim of discrimination). Moreover, private rights of action may still be maintained against private defendants and against local governments.

LEGISLATIVE DEBATE AND COMPROMISE

The ADA grew out of different roots from those of the Civil Rights Act of 1964. The National Council on the Handicapped, a panel of thirteen people appointed by President Ronald Reagan, proposed the first version of the ADA in 1988. This version, which offered more protections for people with disabilities than the enacted version, was largely ignored when Senator Lowell Weicker, a Republican from Connecticut, introduced it in the closing days of the 100th Congress.

In the early days of the George H. W. Bush administration, the bill was cut back to make it more acceptable to the business community. Senator Tom Harkin, a Democrat from Iowa, and Representative Tony Coelho, a Democrat from California, were the chief sponsors of the new version of the ADA, which had been worked out through compromise between the act's supporters and detractors. Some disabilities rights advocates worried that proponents of the ADA gave away too much during compromise negotiations. The bill contained the following revisions:

• •It required modifications of existing structures to accommodate people with disabilities only if these changes could be easily achieved at reasonable expense.
• • It eliminated damages for cases involving public accommodations; private individuals could only seek injunctive relief when they were excluded from public accommodations due to barrier access problems.
• • It did not require television broadcasters to make their programs accessible to persons with impaired hearing.
• • The original bill included an "undue hardship" exception to the requirement that reasonable accommodations or auxiliary aids or services be provided for persons with disabilities. This version of the bill made it easier to claim this undue hardship exception.

The compromise bill eventually became law in the summer of 1990 in an overwhelming bipartisan vote in both the House and Senate.

One reason for the bill's strong support was that many members of Congress had personal or family reasons for being concerned about disability issues. Other key figures in passage of the act were Attorney General Richard Thornburgh; Senator Robert Dole, a Republican from Kansas; and Senator Ted Kennedy, a Democrat from Massachusetts. The major public interest advocates for the ADA were the Disability Rights Defense and Education Fund and the American Civil Liberties Union.

THE ACT'S PRECURSORS

The historical roots of the ADA lie in section 504 of the Rehabilitation Act of 1973, which creates protection against disability discrimination in programs receiving "federal financial assistance." The ADA is modeled on the basic framework used in section 504, including its definition of an individual with a disability. Congress held extensive hearings before enacting the ADA, and key committees wrote extensive reports on the act before it was adopted. The Supreme Court has not relied on that background material in interpreting the act. However, it has sought to interpret the ADA consistently with previous cases argued under section 504.

Another important precursor of the ADA was the Fair Housing Act Amendments of 1988. These amendments extended some of section 504's protections to the private sector by prohibiting discrimination in housing on the basis of disability. It was not until the passage of the ADA in 1990, however, that the private sector began to be broadly covered under federal law by a requirement of nondiscrimination in housing as well as employment.

EXPERIENCE UNDER THE ACT

In the first decade of enforcement of the ADA, many legal cases focused on the definition of an "individual with a disability." The ADA is different from most other civil rights laws in that a person must belong to a protected category to receive legal protection from it. Under the Civil Rights Act of 1964, by contrast, both males and females can bring claims of sex discrimination, just as both whites and blacks can bring claims of race discrimination. Under the ADA, only individuals who qualify as "individuals with a disability" can bring claims of discrimination. An important defense strategy has been to argue that the plaintiff is not "disabled" according to the ADA's definition, and therefore does not have a cause of action. When that strategy is successful, the court does not even reach the question of whether unlawful discrimination occurred.

Sutton v. United Air Lines. In the 1999 case Sutton v. United Air Lines, the Supreme Court interpreted the definition of disability narrowly. The plaintiffs in Sutton sued under Title I, arguing that they had been the victims of unlawful employment discrimination when they failed the vision test required by United Air Lines to work as a commercial pilot. The Court did not come to the question of whether the discrimination they faced was unlawful (or permitted by one of the statute's defenses). Instead, it found that the plaintiffs could not bring an ADA lawsuit because they were not individuals with a disability as defined by the act.

The plaintiffs' uncorrected visual acuity (in other words, sharpness of vision without corrective lenses) was 20/200 or worse in one eye and 20/400 or worse in the other eye. With corrective lenses, their vision was 20/20 or better. The legal question in the case was whether a court should determine the disability status of individuals in their corrected or uncorrected state. The Supreme Court held that "disability under the Act is to be determined with reference to corrective measures." In simpler terms, when wearing glasses or contact lenses the individuals were not disabled. Therefore the plaintiffs had not stated a claim that they were disabled even though United Air Lines had required them to take the vision test without the use of corrective lenses. This interpretation of the ADA has prevented individuals from obtaining protection under the statute if they have an impairment that can be corrected, in part, through some means. Individuals with hearing impairments, diabetes, high blood pressure, and psychological impairments have been found not to be disabled under this narrow standard.

The Importance of Voluntary Compliance. In ADA litigation, particularly in employment discrimination cases, the winners have overwhelmingly been the defendants. Nonetheless, a glance at many public accommodations like hotels, restaurants, and recreational facilities suggests that the ADA has been effective in heightening public awareness of disability issues and encouraging voluntary compliance. Curb cuts, areas where sidewalks dip down to be level with the street to allow easy passage for wheelchairs, or other mechanisms that aid the disabled were virtually unheard of a decade ago and are now seen in most major cities. The most important factor in the act's success in its first decade seems to be voluntary compliance rather than litigation.

RELATIONSHIP WITH OTHER LAWS

The ADA is not the only federal statute to prohibit disability discrimination. Until passage of the ADA, the strongest legislation to protect people with disabilities was probably the Individuals with Disabilities Education Act (IDEA) (formerly known as the Education of All Handicapped Children Act). This civil rights statute guarantees that each child with a disability can have an "individualized education plan" so that he or she can receive a "free appropriate public education."

Other statutes preceding the ADA include the Developmental Disabilities Bill of Rights Act of 1975, the Air Carrier Access Act of 1986, the Voting Accessibility for the Elderly and Handicapped Act of 1984, sections 501 and 503 of the Rehabilitation Act of 1973, and the Fair Housing Act Amendments of 1988.

See also: Civil Rights act of 1964; Fair Housing act of 1968; individuals with Disabilities Education Act.

BIBLIOGRAPHY

Colker, Ruth. "The Americans with Disabilities Act: A Windfall for Defendants." Harvard Civil Rights–Civil Liberties Law Review 99 (1999).

Colker, Ruth, and Bonnie Poitras Tucker. The Law of Disability Discrimination, 3d ed. Cincinnati, OH: Anderson Publishing, 2000.

O'Brien, Ruth. Crippled Justice: The History of Modern Disability Policy in the Workplace. Chicago: University of Chicago Press, 2001.

Sections 501 and 504 of the Rehabilitation Act of 1973

Ruth Colker

Section 504 of the Rehabilitation Act creates protection against disability discrimination in programs receiving "federal financial assistance" and prohibits federal contractors from discriminating on the basis of disability. Section 501 prohibits federal agencies and the U.S. Postal Service from dis criminating on the basis of disability.

Americans with Disabilities Act

Definition

The Americans with Disabilities Act (ADA) was a bill passed by the United States Congress signed into law by President George Bush on July 26, 1990.

Description

The purpose of the ADA was to make society more accessible to people with disabilities. The ADA applies to qualified individuals with disabilities who (1) have physical or mental impairments that substantially limit one or more major life activities; (2) have a record of such impairments; or (3) are regarded as having such impairments. In addition, the ADA protects persons from discrimination based on an association or relationship with an individual with a disability.

A qualified individual with a disability is defined as a person who meets legitimate skill, experience, education, or other requirements for a position, and who is able to perform the essential functions of the position with or without reasonable accommodation. Requiring that an individual be capable of performing essential functions assures that such an individual will not be disqualified simply due to an inability to perform marginal job functions. If the individual is qualified to perform essential job functions, except for limitations caused by a disability, the employer must consider whether the individual could perform these functions with a reasonable accommodation. A written job description, prepared prior to advertising or interviewing applicants for a job, may be considered evidence of the job's essential functions.

Examples of major life activities may include seeing, hearing, speaking, walking, breathing, performing manual tasks, learning, self-care, and working. The ADA covers, for instance, individuals with epilepsy, paralysis, HIV, AIDS, substantial hearing or vision impairment, mental retardation, or specific learning disabilities. It also covers the individual with a record of a disability—for example, a person who has recovered from cancer or mental illness.

The ADA protects individuals who are regarded as having a substantially limiting impairment, even though they may not have such an impairment. For example, the ADA protects a qualified individual with a physical disfigurement from being denied employment because an employer is concerned how customers or coworkers might react.

The ADA also protects individuals from company or organization actions based on assumptions that a employee/member's relationship with a person with a disability would affect his or her job performance, and from actions resulting from bias or misinformation concerning certain disabilities. For example, the ADA protects a person whose spouse has a disability from being denied employment because the employer assumes that the applicant would require excessive leave to care for the spouse. The individual who is involved in volunteer work with people who have AIDS is also protected from employment discrimination by the ADA, if such discrimination is motivated by that relationship or association.

Civil rights protections similar to other legislation that provides protection on the basis of race, color, sex, national origin, age, and religion are also provided by the ADA; it also guarantees equal opportunity for individuals with disabilities in public accommodations, employment, transportation, government services, and telecommunications. Discrimination in all employment practices, including job application procedures, hiring, firing, advancement, compensation, training, recruitment, advertising, tenure, layoff, leave, fringe benefits, and all other employment-related activities, is controlled by the ADA.

With regard to both private and public sector employment, including state and local government services, companies with 15 or more employees are also subject to the ADA. Specifically, businesses must accommodate employees or customers with disabilities unless doing so represents an undue hardship or a direct threat to the health or safety of others.

Although the ADA is intended to protect those with disabilities from discrimination, employers are not expected to give preference to a qualified applicant with a disability over other applicants. An employer remains free to select the most qualified applicant available and to make decisions based on reasons unrelated to a disability.

Financial assistance for employers

To enable smaller employers to make reasonable accommodations, a special tax credit is available. A tax credit of up to $5,000 per year for accommodations, made to comply with the ADA, may be taken by an eligible small business. A full tax deduction of up to $15,000 per year is available to any business for expenses incurred during the removal of qualified architectural or transportation barriers. Covered expenses include removing barriers created by steps, narrow doors, inaccessible parking spaces, restroom facilities, and transportation vehicles.

Enforcement

The ADA's employment provisions are enforced under the same procedures now applicable to race, color, sex, national origin, and religious discrimination under title VII of the Civil Rights Act of 1964 and the Civil Rights Act of 1991. Available remedies include hiring, reinstatement, promotion, back pay, front pay, restored benefits, reasonable accommodation, attorneys' fees, expert witness fees, and court costs. Compensatory and punitive damages also may be available in cases of intentional discrimination or where an employer fails to make a good faith effort to provide a reasonable accommodation.

Viewpoints

Despite the ADA's laudable intentions, it is not without critics. It is pointed out by those who find fault with the ADA that its definitions are too broad, vague, or ill-defined. Others suggest that unnecessary litigation has been spawned by the ADA, which has not been effective in moving those with disabilities from welfare to the workforce, and requires employers to shoulder burdensome costs to accommodate individuals with disabilities despite available tax credits available from the federal government.

American Disabilities Act defenders point out an example of a recent study reporting that companies' insurance costs rarely rise because of hiring individuals with disabilities. Obvious benefits generated by the ADA are also observed by supporters. Among these benefits are increased attention to pervasive discrimination against and widespread unemployment of people with disabilities, and their willingness and potential to contribute to society. Stereotypes about people with disabilities have been revealed by studies. It is clear that people with disabilities are hired less and fired more than other employees.

Professional implications

Medical examinations

According to the ADA, employers may conduct employee medical examinations when there is evidence of a job performance or safety problem, when it is required by federal law, when it is necessary to determine an individual's fitness to perform a particular job, or when voluntary examinations are part of employee health programs. However, information from medical examinations must be kept confidential. According to the ADA, testing for illegal drug use is not considered part of a medical examination.

An employer may not ask or require an applicant to take a medical examination before extending a job offer. Furthermore, pre-employment inquiries about a disability or the nature or severity of a disability cannot be made by an employer. However, questions may be asked by the employer about the individual's ability to perform specific job functions. In addition, an individual with a disability may be asked by an employer to describe or demonstrate how he or she would perform such functions.

An employer may qualify a job offer based on a satisfactory post-offer medical examination or medical inquiry, provided this is required of all employees in the same job category. A post-offer examination or inquiry does not have to be job related.

In the event that a post-offer medical examination or inquiry reveals a disability and the individual is not hired, the reason for the rejection must be job related. An employer must show that reasonable accommodations were not available to enable the individual to perform the essential job functions, or that such accommodations would have imposed an undue hardship. A post-offer medical examination may disqualify an individual. If the employer can demonstrate that a direct threat in the workplace—that is, that a significant risk or substantial harm to the health or safety of the individual would also pose a direct threat in the workplace—a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced below the direct threat level through reasonable accommodation. Such a disqualification must be job related and consistent with business necessity. In addition, an individual with a disability who is able to perform essential job functions may not be disqualified due to speculation that the disability may cause a risk of future injury.

Reasonable accommodation

A reasonable accommodation is any modification or adjustment to a job or the work environment that enables a qualified applicant or employee with a disability to participate in the application process or to perform essential job functions. A reasonable accommodation includes adjustments to assure that a qualified individual with a disability is provided with the same employment rights and privileges extended to employees without disabilities.

Reasonable accommodation may include making existing facilities used by employees readily accessible to, and usable by, an individual with a disability. In addition, it may involve restructuring a job; modifying work schedules; acquiring or modifying equipment; providing qualified readers or interpreters; or appropriately modifying examinations, training, or other programs. Reasonable accommodation also may include reassigning a current employee to a vacant position for which he or she is qualified, if the person is unable to do the original job because of a disability even with an accommodation. However, an employer is not obligated to find a position for an applicant who is not qualified for the position sought, nor are employers required to lower quality or quantity standards as an accommodation.

Appropriate accommodation decisions must be based on the facts in each case—that is, whether the accommodation will provide an opportunity for a person with a disability to achieve the same level of performance and the potential to enjoy benefits equal to those of a person without a disability. However, the accommodation does not have to ensure equal results or provide exactly the same benefits.

An employer is only required to accommodate a known disability of a qualified applicant or employee. The requirement is typically initiated by a request from an individual with a disability. Accommodations must be made on an individual basis since the nature and extent of a disabling condition and the requirements of a job vary with each case. If the individual does not request an accommodation, the employer is not obligated to provide one except where an individual's known disability impairs the ability to know of, or effectively communicate a need for, an accommodation obvious to the employer. If an appropriate accommodation is requested by a person with a disability (but not suggested by the employer, who cannot "suggest" this), the employer and the individual should work together to identify one. There are a number of resources that provide assistance without cost.

An employer is not required to make an accommodation if it would impose an undue hardship on the employer's business. Undue hardship is defined as an "action requiring significant difficulty or expense." This includes the nature and cost of the accommodation in relation to the size, resources, nature, and structure of the employer's operation. Undue hardship is determined on an individual basis. In general, a larger employer with greater resources would be expected to make accommodations requiring greater effort or expense than a smaller employer with fewer resources.

If an accommodation represents an undue hardship, the employer must try to identify another accommodation that will not pose such a hardship. Also, if the cost of an accommodation would impose an undue hardship on the employer, the individual with a disability should be given the option of paying that portion of the cost that would constitute an undue hardship or provide the accommodation.

The employer is obligated to provide access for an individual applicant to participate in the job application process, and for an individual employee with a disability to perform the essential functions of the job, including access to a building, the work site, necessary equipment, and all facilities used by employees.

However, an employer is not required to make existing facilities accessible until an employee with a disability needs an accommodation. The employer does not have to make changes to provide access in places or facilities that will not be used by that individual for employment-related activities or benefits.

Testing

Accommodations may be needed to assure that tests or examinations measure the actual ability of an individual to perform job functions, rather than reflect limitations caused by the disability. Tests should be given to people who have sensory, speaking, or manual impairments in a manner that does not require the use of the impaired skill, unless the test is designed to measure a job-related skill.

Resources

PERIODICALS

Anonymous. "Your Rights." Accent on Living 44 no. 4 (Spring 2000): 38-39.

Shellenbarger, S. "A Little-Known Part of the Disabilities Act Protects Caregivers." Wall Street Journal (August 23, 2000).

ORGANIZATIONS

Americans with Disabilities Act Document Center. 〈http://janweb.icdi.wvu.edu/kinder/index.htm〉.

Americans with Disabilities Act of 1990, 42 U. S. C. 12101-12213 (1990). 〈http://www.usdoj.gov/crt/ada/pubs/ada.txt〉.

U.S. Department of Justice. Americans with Disabilities ADA Homepage. 〈http://www.usdoj.gov/crt/ada/adahom1.htm〉.

AMERICANS WITH DISABILITIES ACT

Many older persons fall within the protections of the Americans with Disabilities Act (ADA), which was enacted by Congress as Public Law no. 101-336 on 26 July 1990 and signed by President George Bush, becoming effective in 1992. This legislation was intended primarily to expand to almost the entire public and private sectors the requirements regarding rights to employment, services, and public accommodations for disabled individuals which previously were imposed by section 504 of the Rehabilitation Act of 1973 only on federal contractors. Specifically, Congress in 1990 stated the purpose of the ADA as follows:

1. to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities;
2. to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities;
3. to ensure that the federal government plays a central role in enforcing the standards established in this Act on behalf of individuals with disabilities.

The ADA is enforced by the U.S. Equal Employment Opportunity Commission (EEOC), the U.S. Departments of Justice and Transportation, and civil lawsuits brought by individuals who have suffered unlawful discrimination. The court costs and attorneys' fees of prevailing plaintiffs must be paid by defendants found guilty of discrimination. No entity may retaliate against an individual for filing a claim under the ADA. In addition, most states have adopted a state counterpart to the federal ADA, enforceable through state agencies and in state courts.

Aging certainly does not automatically equal disability, and vice versa. Indeed, age by itself cannot qualify as a disability under the ADA. Nonetheless, more adults than ever before are either developing disabilities in their later years or aging through life with disabilities. The likelihood of disability demonstrably increases with age.

Employment discrimination

Title I of the ADA prohibits private (both for-profit and not-for-profit) and public (i.e., government) employers with twenty-five or more employees from discriminating "against a qualified individual with a disability because of the disability of such individual 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."

Unlike the Age Discrimination in Employment Act (ADEA), passed by Congress in 1967, which only requires equal treatment for older workers (defined as persons at least forty years old), the ADA imposes affirmative obligations on employers regarding employment of the disabled. Specifically, the ADA defines unlawful discrimination to include the following:

1. (A) not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless [the employer] can demonstrate that the accommodation would impose an undue hardship on the operation of the business of [the employer]; or
2. (B) denying employment opportunities to a job applicant or employee who is an otherwise qualified individual with a disability, if such denial is based on the need [of the employer] to make reasonable accommodation to the physical or mental impairments of the employer or applicant.

The ADA protects persons with a disability, which means, with respect to an individual:

1. (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;
2. (B) a record [i.e., a history] of such an impairment; or
3. (C) being regarded [by others] as having such an impairment.

Many older persons ought to qualify as persons with a disability so defined.

Discrimination in public services and accommodations

Older individuals who qualify as persons with disabilities are also protected by Titles II and III of the ADA. These titles relate, respectively, to discrimination by public and private entities.

Title II. Title II provides that "[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity [defined as any department or agency of a state or local government], or be subjected to discrimination by any such entity." Banned discrimination might take the form of formal or informal barriers in the application process to obtain benefits (e.g., Medicare, Medicaid, Social Security), including unnecessarily complex application forms, inaccessible application sites, and long waiting times for appointments; reductions in public benefits and services; and undue intrusions into the disabled person's choices about services. "Qualified individual with a disability" is defined as "an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity."

A major U.S. Supreme Court decision interpreted Title II of the ADA in 1999. In the case of Olmstead v. L.C. (119 S.Ct. 2176), the state of Georgia was sued by two women whose disabilities included mental retardation and mental illness. Both women lived in state-owned and -operated institutions, despite the fact that the professionals who were treating them had determined that they could be appropriately served in a community setting. The plaintiffs claimed that their continued institutionalization was a violation of their right under the ADA, to live "in the most integrated setting appropriate to the needs of qualified individuals with disabilities." The Supreme Court found that "unjustified isolation. . . is properly regarded as discrimination based on disability." The Court majority opinion observed that "institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable and unworthy of participating in community life," and "confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment."

Under Olmstead, states are now required to provide community-based services for persons with disabilities who would otherwise be entitled to institutional services when (1) the state's treatment professionals reasonably determine that community placement is appropriate; (2) the affected persons do not oppose community placement; and (3) community placement can be reasonably accommodated, taking into account the resources available to the state and the needs of others who are receiving state-supported disability services. The Court firmly cautioned, however, that nothing in the ADA condones termination of institutional settings (such as nursing homes or state mental institutions) for persons unable to handle or benefit from community service services.

Moreover, the state's responsibility, once it provides community-based services to qualified persons with disabilities, is not unlimited. Under the ADA, states are obligated to "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 Supreme Court indicated that the test as to whether a modification entails "fundamental alteration" of a program takes into account three factors: (1) the cost of providing services to the individual in the most integrated setting appropriate; (2) the resources available to the state; and (3) how the provision of services affects the state's ability to meet the needs of others with disabilities. According to the Court, a state can establish compliance with Title II of the ADA if it demonstrates that it has (1) a comprehensive, effectively working plan for placing qualified persons with disabilities in less restrictive settings and (2) a waiting list that moves at a reasonable pace not controlled by the state's endeavors to keep its institutions fully populated.

Title III. Title III of the ADA prohibits discrimination by public accommodations: "(a) 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."

The following private entities (both for-profit and not-for-profit) are considered public accommodations: places of lodging; establishments serving food or drink (e.g., restaurants); places of exhibition or entertainment; places of public gathering; sales or rental establishments; service establishments (including professional offices of attorneys and health care providers, as well as health care institutions); stations used for public transportation; places of public display or collection; places of education; social service center establishments; and places of exercise or recreation. Moreover, "No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of specified public transportation services provided by a private entity that is primarily engaged in the business of transporting people. . ."

Title III imposes affirmative obligations on private entities. It requires places of public accommodation to do the following:

1. (ii) make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford [covered] goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless such entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations;
2. (iii) take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated otherwise. . . treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden;
3. (iv) remove architectural barriers, and communication barriers that are structural in nature, in existing facilities, and transportation barriers in existing vehicles and rail passenger cars used by an establishment for transporting individuals. . .[New construction and alterations in public accommodations are also covered.];
4. (v) where an entity can demonstrate that the removal of a barrier under clause (iv) is not readily achievable, [the entity must] make such goods, services, facilities, privileges, advantages, or accommodations available through alternative methods if such methods are readily achievable.

One important limitation on the reach of Title III is that religious organizations are specifically excluded from coverage. Thus, there is no federal requirement that religious and social activities associated with places of worship be accessible to persons with disabilities.

Conclusion

Many questions relating to the eventual impact of the ADA on older persons, both individually and as a group, remain and await clarification through further regulatory and judicial interpretation in particular cases. It is certain, though, that the ADA provides broad, needed civil rights protections for older Americans with mental and physical disabilities in respect to programs sponsored or funded by state and local governments and to public accommodations provided by private enterprises.

Marshall B. Kapp

See also Disability.

BIBLIOGRAPHY

American Bar Association, Commission on Mental and Physical Disability Law. Mental Disabilities and the Americans with Disabilities Act, 2d ed. Washington, D.C.: ABA, 1997.

Ansello, E. F., and Eustis, N. N., guest eds. "Aging and Disabilities: Seeking Common Ground." Generations 16 (1992): 3–99.

Colker, R., and Tucker, B. P. The Law of Disability Discrimination, 2d ed. Cincinnati, Ohio: Anderson, 1998.

Gostin, L. O., and Beyer, H. A. Implementing the Americans with Disabilities Act: Rights and Responsibilities of All Americans. Baltimore: Brookes, 1993.

Gottlich, V. "Protection for Nursing Facility Residents Under the ADA." Generations 18 (1994): 43–47

Rothstein, L. F. Disabilities and the Law, 2d ed. St. Paul, Minn.: West Group, 1997.

Tucker, B. P. Federal Disability Law, 2d ed. St. Paul, Minn.: West Group, 1998. West, J., ed. The Americans with Disabilities Act: From Policy to Practice. New York: Milbank Memorial Fund, 1991.

ANDROGENS

See Andropause; Menopause