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The Americans with Disabilities Act of 1990 (ADA)

The Americans with Disabilities Act of 1990 (ADA) is a law that was enacted by the U.S. Congress in 1990. It was signed into law on July 26, 1990, by President George H. W. Bush, and later amended with changes effective January 1, 2009.

The ADA is a wide-ranging civil rights law that prohibits, under certain circumstances, discrimination based on disability. It affords similar protections against discrimination to Americans with disabilities as the Civil Rights Act of 1964, which made discrimination based on race, religion, sex, national origin, and other characteristics illegal.

Disability is defined by the ADA as "a physical or mental impairment that substantially limits a major life activity." The determination of whether any particular condition is considered a disability is made on a case by case basis. Certain specific conditions are excluded as disabilities, such as current substance abuse and visual impairment which is correctable by prescription lenses.

On September 25, 2008, President George W. Bush signed into law the ADA Amendments Act of 2008 (ADAAA). This was intended to give broader protections for disabled workers and "turn back the clock" on court rulings which Congress deemed too restrictive. The ADAAA includes a list of major life activities.

Title I - Employment

The ADA states that a covered entity shall not discriminate against a qualified individual with a disability. This applies to job application procedures, hiring, advancement and discharge of employees, workers' compensation, job training, and other terms, conditions, and privileges of employment. Covered entity can refer to an employment agency, labor organization, or joint labor-management committee, and is generally an employer engaged in interstate commerce and having 15 or more workers.

Discrimination may include, among other things, limiting or classifying a job applicant or employee in an adverse way, denying employment opportunities to people who truly qualify, or not making reasonable accommodations to the known physical or mental limitations of disabled employees, not advancing employees with disabilities in the business, and/or not providing needed accommodations in training. Employers can use medical entrance examinations for applicants, after making the job offer, only if all applicants (regardless of disability) must take it and it is treated as a confidential medical record. Qualified individuals do not include any employee or applicant who is currently engaging in the illegal use of drugs when that usage is the basis for the employer's actions.

Part of Title I was found unconstitutional by the United States Supreme Court in the case of Board of Trustees of the University of Alabama v. Garrett as violating the sovereign immunity rights of the several states as specified by the Eleventh Amendment to the United States Constitution. The provision allowing private suits against states for money damages was invalidated.

Title II - Public Entities (and public transportation)

Title II prohibits disability discrimination by all public entities at the local (i.e. school district, municipal, city, county) and state level. Public entities must comply with Title II regulations by the U.S. Department of Justice. These regulations cover access to all programs and services offered by the entity. Access includes physical access described in the ADA Standards for Accessible Design and programmatic access that might be obstructed by discriminatory policies or procedures of the entity.

Title II also applies to public transportation provided by public entities through regulations by the U.S. Department of Transportation. It includes the National Railroad Passenger Corporation, along with all other commuter authorities. This section requires the provision of paratransit services by public entities that provide fixed route services.

Title III - Public Accommodations (and Commercial Facilities)

Under Title III, no individual may be discriminated against on the basis of disability with regards to the full and equal enjoyment of the goods, services, facilities, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation. "Public accommodations" include most places of lodging (such as inns and hotels), recreation, transportation, education, and dining, along with stores, care providers, and places of public displays, among other things.

Under Title III of the ADA, all "new construction" (construction, modification or alterations) after the effective date of the ADA (approximately July 1992) must be fully compliant with the Americans With Disabilities Act Accessibility Guidelines ("ADAAG") found in the Code of Federal Regulations at 28 C.F.R., Part 36, Appendix "A."

Title III also has application to existing facilities. One of the definitions of "discrimination" under Title III of the ADA is a "failure to remove" architectural barriers in existing facilities. See 42 U.S.C. 12182(b)(2)(A)(iv). This means that even facilities that have not been modified or altered in any way after the ADA was passed still have obligations. The standard is whether "removing barriers" (typically defined as bringing a condition into compliance with the ADAAG) is "readily achievable," defined as "easily accomplished without much difficulty or expense."

The statutory definition of "readily achievable" calls for a balancing test between the cost of the proposed "fix" and the wherewithal of the business and/or owners of the business. Thus, what might be "readily achievable" for a sophisticated and financially capable corporation might not be readily achievable for a small or local business.

There are exceptions to this title; many private clubs and religious organizations may not be bound by Title III. With regard to historic properties (those properties that are listed or that are eligible for listing in the National Register of Historic Places, or properties designated as historic under State or local law), those facilities must still comply with the provisions of Title III of the ADA to the "maximum extent feasible" but if following the usual standards would "threaten to destroy the historic significance of a feature of the building" then alternative standards may be used.

Nonetheless, as Frank Bowe predicted when he testified as the lead witness on Title III in the Senate hearings leading up to enactment, the fact that Title III calls for accessibility in, and alterations to, many thousands of stores, restaurants, hotels, etc., in many thousands of communities across the U.S. means that this Title probably has had more effect on the lives of more Americans with disabilities than any other ADA title.

Title IV - Telecommunications

Title IV of the ADA amended the landmark Communications Act of 1934 primarily by adding section 47 U.S.C. 225. This section requires that all telecommunications companies in the U.S. take steps to ensure functionally equivalent services for consumers with disabilities, notably those who are deaf or hard of hearing and those with speech impairments.

When Title IV took effect in the early 1990s, it led to installation of public Teletypewriter (TTY) machines and other TDDs (Telecommunications Device for the Deaf). Title IV also led to creation, in all 50 States and the District of Columbia, of what were then called dual-party relay services and now are known as Telecommunications Relay Services (TRS), such as STS Relay. Today, many TRS-mediated calls are made over the Internet by consumers who use broadband connections. Some are Video Relay Service (VRS) calls, while others are text calls. In either variation, communication assistants translate between the signed/typed words of a consumer and the spoken words of others. In 2006, according to the Federal Communications Commission (FCC), VRS calls averaged two million minutes a month.

Title V - Miscellaneous Provisions

Title V includes technical provisions. It discusses, for example, the fact that nothing in the ADA amends, overrides or cancels anything in Section 504. Additionally, Title V includes an anti retaliation or coercion provision. The Technical Assistance Manual for the ADA explains it: "III-3.6000 Retaliation or coercion. Individuals who exercise their rights under the ADA, or assist others in exercising their rights, are protected from retaliation.

The prohibition against retaliation or coercion applies broadly to any individual or entity that seeks to prevent an individual from exercising his or her rights or to retaliate against him or her for having exercised those rights . . . Any form of retaliation or coercion, including threats, intimidation, or interference, is prohibited if it is intended to interfere.

Major life activities

The ADA defines a covered disability as "a physical or mental impairment that substantially limits a major life activity." The Equal Employment Opportunity Commission (EEOC) was charged with interpreting the 1990 law with regard to discrimination in employment. Its regulations narrowed "substantially limits" to "significantly or severely restricts".

In 2008, effective January 1, 2009, the ADAAA broadened the interpretations and added to the ADA examples of "major life activities" including, but not limited to, "caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working" as well as the operation of several specified "major bodily functions." The Act overturns a 1999 U.S. Supreme Court case which held that an employee was not disabled if the impairment could be corrected by mitigating measures; it specifically provides that such impairment must be determined without considering such ameliorative measures. Another court restriction overturned is the interpretation that an impairment that substantially limits one major life activity must also limit others to be considered a disability.

The ADAAA will undoubtedly lead to broader coverage of impaired employees. The United States House Committee on Education and Labor states that the amendment "makes it absolutely clear that the ADA is intended to provide broad coverage to protect anyone who faces discrimination on the basis of disability". Required doctor visits are not to be held against anyone with a disability.
 
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