Americans with Disabilities Act (ADA) Overview

  • The Americans with Disabilities Act (ADA), as passed in 1990 near the end of the first Bush administration and amended in 2008 near the end of the second Bush administration, protects against unlawful discrimination based on disability in virtually all aspects of American life.
  • Having or being diagnosed with an illness does not automatically entitle someone to those protections, and for those eligible for protections the scope of their rights may be limited.
  • But there is no mistaking that the ADA is the cornerstone civil rights law providing equal opportunity for people with disabilities in the United States.
  • Further information on versions of the ADA as amended.

The ADA offers protections in the following key areas (and establishes numerous other requirements):

  1. Employment – in companies with 15 or more employees
  2. Public Services – programs, services, and activities of state and local government
  3. Public Accommodations and Services Operated By Private Entities – such as your lawyer’s or doctor’s office, movie theatre, restaurant, etc.

Note: While a complete explanation of the rights established by the ADA lies far beyond the reach of this website, here is a brief synopsis of many of the key protections that will be afforded to a person who satisfies the ADA’s definition of “disability,” along with a few limitations of those rights:

1. With respect to employment, “no covered entity [employers employing more than 15 employees] shall discriminate against a qualified individual on the basis of 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 ADA clearly establishes that garden variety discrimination is prohibited (e.g. a covered employer cannot refuse to hire or promote due to disability) as are screening mechanisms that have a disparate impact on PWDs.
  • Included among the unlawful employment practices established by the ADA is “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 such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity.”
  • Examples of reasonable accommodations available schedule modifications, job restructuring, leaves of absence, transfers, time off for doctor’s appointments, etc.
  • Employees who need a reasonable accommodation to perform the functions of his/her position must request one from the employer. The employer’s ADA policies may provide guidance as to whom such a request should be made.
  • The ADA also establishes several defenses for employers.
  • Often there is a balancing of employer and employee interests. For example: 
    • an employer can ask whether an applicant can perform the essential functions of the position applied for, but cannot lawfully inquire about the PWP’s disability or ask other medical questions until after making a conditional job offer.
    • after a conditional offer of employment is extended to the applicant, the employer may ask disability related questions and perform medical and psychological evaluations of the applicant, provided that if any such information is used as a basis not to hire the applicant, the reasons must be job-related and consistent with business necessity
    • after an employee is hired, any medical examination or inquiry must be job-related and consistent with business necessity.

2. With respect to public services, “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.”

  • There are a number of specific requirements for public transportation. And again, several defenses for public entities are established.

3. With respect to places of public accommodations, “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.”

  • There are again several defenses, including the removal of barriers to access is not “readily achievable,” which the ADA defines as “easily accomplishable and able to be carried out without much difficulty or expense.”
  • Another limitation is that the ADA does not “require an entity to permit an individual to participate in or benefit from the goods, services, facilities, privileges, advantages and accommodations of such entity where such individual poses a direct threat to the health or safety of others.

Special Note to Caregivers: When the ADA is triggered, it extends rights not only to the PWP, but also to you.

  • When it comes to employment, the ADA specifically prohibits “excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association.”
  • And in the marketplace, it is “discriminatory to exclude or otherwise deny equal goods, services, facilities, privileges, advantages, accommodations, or other opportunities to an individual or entity because of the known disability of an individual with whom the individual or entity is known to have a relationship or association.”
  • Caregivers also have rights under the FMLA, which allows eligible caregivers to take up to 12 work weeks of job protected leave to “care for the employee’s spouse, son, daughter, or parent with a serious health condition.” (Note: same-sex spouses and domestic partners need to look to state laws for protection, if any.)

 

Content for this section provided by Mark Rubin, J.D.

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