(1973) Section 504 of the Rehab Act (1975) Ind. w Disabilities in Ed Act (1975) Dev. Disabilities Assistance and Bill of Rights Act (1986) Protection.

Know Your Rights Under the Americans with Disabilities

Act (ADA)Presented by: Cyndy Miller

(1973) Section 504 of the Rehab Act(1975) Ind. w Disabilities in Ed Act(1975) Dev. Disabilities Assistance

and Bill of Rights Act(1986) Protection and Advocacy for

Individuals with Mental Illness Act(1990) Americans with Disabilities

Act, amended (2008)(2000) Ticket to Work and Work Incentive Improvement Act(2000) Help America Vote Act

Laws to Protect Individuals with Disabilities

Signed in 1990 Protect civil rights of people

with disabilities Definition of “disability”

broadened in 2008 (ADAAA) U.S. Department of Justice

revised regulations implementing ADAAA in effect March 15, 2011

The Americans With Disabilities Act (ADA)

Prohibits discrimination, requires that businesses provide reasonable accommodations to employees with disabilities and provides that facilities and services be made accessible.

Title I: definition of disability expanded

Titles II and III:◦ Effective communication◦ Examinations and Courses◦ Places of Lodging◦ Service Animals◦ Ticketing◦ Wheelchair and Other Power-Driven Mobility Devices ◦ Detention and Correctional facilities◦ Overview of 2010 ADA Standards for Accessible Design◦ Parking

ADAAA Revised Regulations

Title I: Employment

Title II: State and Local Governments

Title III: Public Accommodations and Commercial Facilities

Title IV: Telecommunications

Title V: Miscellaneous

5 Parts of the ADA

Equal treatment under the law Fairness to individuals, businesses, and the

government Independence Access to facilities and services A diverse, integrated, and welcoming

society for people with disabilities Clear, enforceable standards

Goals of the ADA

Title I of the ADA Employment

Employers are not allowed to discriminate against individual because of a disability

Do not guarantee an individual a job because individual has a disability

Must be able to do the job hired to do, with or without reasonable accommodation

Can be terminated/fired from job even if have a disability

What are the protections under the law?

The ADA protects you from discrimination in all employment practices including:

Hiring Firing Training Pay Promotion Benefits; and Leave

What are my rights under the ADA?

ADA Definitions Qualified Individual—a person who has a

disability who with or without reasonable accommodations can perform the essential functions of the job

Disability—physical or mental impairment which substantially limits one or more major life activity; or is a record of such impairment; or is regarded as having such an impairment

Essential function—a job requirement required to be performed and if removed would fundamentally alter the position

Reasonable Accommodation

Issues

You may never have to tell your employer about your disability.

If you need assistance to do your job, then you will need to tell the employer about your disability to get the assistance you need and why your disability requires the assistance.

This assistance is called a reasonable accommodation.

When do you tell your employer about your disability?

A reasonable accommodation is any change or adjustment in the job, work environment, or the way things are usually done that would allow you to:

◦ Apply for a job◦ Perform essential job functions◦ Enjoy equal access to benefits available to other

individuals in the workplace

What is “reasonable accommodation”?

Job restructuring

Part-time or modified work schedules

Reassignment to a vacant position

Appropriate adjustment or modification of examinations, training materials or policies

Examples of Reasonable Accommodations

Possible accommodations: Breaks to take medication Leave to seek medical treatment or adjust

to medication Adjustments to work schedule Someone to drive to meetings and other

work-related events Work at home

Examples

If driving is an essential function of the job, employer does not have to eliminate it from the position.

◦ Review if an accommodation is available

However, carefully examine whether driving is a job function or simply a way to accomplishing an essential function

Examples—Driver’s license

Example: A qualified sales clerk applied for promotion to assistant manager of a store. The employer promotes someone else claiming an essential function of the job is driving store receipts to the bank.

Because depositing the receipts, not driving, is the actual function of the job, the employer should have determined whether the sales clerk could have done the job with a reasonable accommodation (e.g. having another employee drive her or paying for a taxi)(From EEOC’s Q&As on epilepsy in the workplace (p.8))

Examples—Driver’s license

No magic words--Let your employer know that you need an adjustment or change because of your disability

Put your request in writing!

Request should describe nature of the disability and resulting limitations, the need for an accommodation and the proposed accommodation (if known)

How do I request a reasonable accommodation?

After an accommodation is requested…

The employer, employee and other relevant personnel should enter into an informal and interactive process;

Employers may request limited medical documentation;

The process should take a reasonable amount of time;

Duty to accommodate is ongoing.

Interactive Process

An accommodation does not have to be provided if:

It is unreasonable◦ Requires reallocation of essential job functions◦ Will not enable the employee to be qualified

It results in an undue hardship to the employer; or

Results in a direct threat to the health or safety of the employee or others.

Reasonable Accommodation Limitations

Title II of the ADAState and Local Governments

Prohibits discrimination against qualified individuals with disabilities in all: ◦ Programs◦ Activities◦ Services of public entities

Applies to all State and local governments, their departments and agencies, and any other instrumentalities or special purpose districts

Also covers public transportation

How does the ADA apply to State and local governments?

Make reasonable modifications to their policies, practices, and procedures to allow equal opportunity for individuals with disabilities to participate◦ unless to do so would fundamentally alter the nature of the service,

program, or activity.

Provide auxiliary aids and services, integrated program access through nonstructural and architectural modifications

Public entities do not need to remove all physical barriers in existing buildings as long as programs provided in those buildings are readily accessible to users with disabilities in another facility

All new construction must be accessible

What are the protections under the law?

Olmstead v. L.C., 527 U.S. 581 (1999)

The story: 2 women, Lois Curtis and Elaine Wilson, who had mental illness and developmental disabilities, were voluntarily admitted to the psychiatric unit in the State-run Georgia hospital.

Following the women's medical treatment, mental health professionals stated that each was ready to move to a community-based program.

However, the women remained confined in the institution, each for several years after the initial treatment was concluded due to state budgetary concerns.

Olmstead Decision and the ADA

24

Unjustified segregation of persons with disabilities constitutes discrimination in violation of title II of the Americans with Disabilities Act (ADA).

Public entities must provide community-based services to persons with disabilities when:(1) such services are appropriate;

(2) the affected persons do not oppose community-based treatment; and

(3) community-based services can be reasonably accommodated, taking into account the resources available to the public entity and the needs of others who are receiving disability services from the entity.

Olmstead Decision

25

U.S. v. Rhode Island –2014 Settlement Agreement◦ Individuals with disabilities who are unnecessarily segregated in

sheltered workshops and facility-based day programs to the exclusion of integrated services, such as supported employment and integrated day services.  

U.S. v. State of Florida, 1:13-cv-61576 (S.D. Fla. 2013)◦ The lawsuit alleges that children with disabilities are unnecessarily

segregated in nursing facilities when they could be served in their family homes or other community-based settings.

United States v. State of New York—2013 Settlement Agreement◦ The agreement remedies discrimination by the State in the

administration of its mental health service system and ensures that individuals with mental illness who reside in 23 large adult homes in New York City receive services in the most integrated setting appropriate to their needs consistent with the ADA and Olmstead. 

Olmstead in Action

26

Private lawsuits◦ Court order to stop discrimination ◦ Attorney’s fees◦ No monetary damages

File complaint with designated federal agency◦ I.e. Department of Justice or Department of

Transportation◦ Monetary damages or civil penalties may be

awarded

Enforcement of Title II

Title III of the ADAPublic Accommodations

Private entity that owns, operates, leases or leases to a place of public accommodation;

Commercial facilities; and Private entities offering examinations and courses

related to educational or occupational certification

Includes wide range of entities including:◦ Restaurants◦ Hotels◦ Theaters◦ Physician offices◦ Day care centers

What are public accommodations?

Public accommodations must:

◦ Provide goods and services in integrated setting

◦ Eliminate unnecessary eligibility standards or rules that deny an equal opportunity to enjoy goods and services

◦ Modify policies, practices, and procedures that deny equal access (unless fundamental alteration)

◦ Furnish auxiliary aids when necessary to ensure effective communication

◦ Remove barriers if readily achievable

Overview of Requirements

◦ Obvious: Violation if a retail store to have a rule to exclude all persons who are deaf Rule is not necessary for provision of the service

◦ No child in swim diapers may swim in pool Policy may need to be modified for a child with

disability

◦ Subtle: Requiring a driver’s license as the only form of identification for purposes of paying by check May discriminate against persons with vision

impairment; alternative identification available

Examples of discrimination in Title III:

Modifications that would fundamentally alter the nature of the services or an undue burden:

◦ Not discriminatory for a physician who specializes in burn patients to refer a patient with a disability to another physician for a broken limb (outside of specialty)

◦ Not all restaurants must have braille menus (if waiters or other employees are available to read the menu)

◦ Retail stores not required to have a sign language interpreter on staff (if can communicate by pen/paper)

Title III does NOT require:

Physical barriers to entering and using existing facilities must be removed when “readily achievable.”

◦ Readily achievable means easily accomplished and able to be carried out without much difficulty or expense.

◦ Examples of barrier removal: Installing ramps Making curb cuts at sidewalks Rearranging tables, chairs, display racks Installing grab bars in toilets

Existing Facilities and Barrier Removal

What is wrong with these?

doyoulikethisinstallation.com

If not readily achievable, alternative steps may be taken to make goods and services available.

Examples:◦ Provide goods and services at door or sidewalk◦ Provide home delivery◦ Retrieve merchandise from inaccessible racks◦ Relocate activities to accessible location

Alternatives If not readily achievable

New construction must be accessible

Alterations must be accessible to the maximum extent feasible

◦ Must follow the ADA Accessibility Guidelines

These standards include general design requirements for building and site elements such as parking, accessible routes, ramps, and elevators.

New Construction or Alterations

Private lawsuits◦ Court order to stop discrimination ◦ Attorney’s fees◦ No monetary damages

File complaint with designated federal agency◦ I.e. Department of Justice or Department of

Transportation◦ Monetary damages or civil penalties may be

awarded

Enforcement of Title III

Only dogs are recognized as service animals

◦ Revised regulations also include a separate provision for miniature horses

Dog is individually trained to do work or perform tasks for person with a disability◦ Guiding ◦ Pulling wheelchair◦ Alerting person who is having a seizure◦ Reminding to take medication◦ Calming person with PTSD or anxiety

NOTE: If sole function is to provide comfort or emotional support=NOT a service animal

Service Animals—Title II and III

Title II and Title III entities must allow service animal in all areas where members of public allowed to go

Must be under control of person

Only 2 inquiries allowed:◦ Is the dog a service animal required b/c of

disability◦ What work or task has the dog been trained to

perform

There is no requirement to have certification

Service Animals Cont.

Job Accommodation Network AskJAN.org

U.S. Equal Employment Opportunity Commission www.eeoc.gov

ADA Disability and Business Tech. Asst. Ctr.www.adata.org/dbtac.html

U.S. Department of Justice ADA Home Page www.ada.gov

Resources

Disability Rights Iowa400 East Court Avenue, Suite 300 Des Moines, Iowa 50309Telephone: 515-278-2502 Toll Free: 1-800-779-2502FAX: 515-278-0539 Toll Free TTY: 1-866-483-3342Email: [email protected]

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