the ada national network great plains ada center1-800-949-4232 new directions in accessibility and...

The ADA National Network

Great Plains ADA Center 1-800-949-4232www.adaproject.org

New Directions in Accessibility and Employment

Rich SternadoriGreat Plains, Nebraska ADA Coordinator

Great Plains ADA Center

Course Objectives

1. Knowing the services available from the Federal network of ADA Centers.

2. Gaining a perspective on the newly expanded civil rights for persons with disabilities under the ADA Amendments Act and the Equal Employment Opportunities Commission.

3. Understanding the concepts and applications of Title III of the ADA



Introduction

The ADA Centers



Disability Business and Technical Assistance Center.

www.adaproject.org

800. 949. 4232



Ten centers established by the National Institute on Disabilityand Rehabilitation Research (NIDRR)

1-800-949-4232www.adata.org


DBTAC Service Region VII

IowaKansasMissouriNebraska

NE

IA

KS MO


DBTAC REGION VII - About Us

The Great Plains ADA Disability and Technical Assistance Center (DBTAC) is one of ten centers established shortly after the Americans with Disabilities Act was signed into law in 1991.

Our mission is to provide information, technical assistance and training on the Americans with Disabilities Act and related disability laws.


…is just a phone call away when you use the ADA Info Line.

Or submit questions on–line at www.adaproject.org

1-800-949-4232

Technical Assistance…


Who is protected by the ADA?

• The ADA Protects “Qualified Individuals with Disabilities From Discrimination by Public Entities.

• How do we define a qualified individual?


Individual with a disability: Three-part definition

1) Has a physical or mental impairment that “substantially limits” one or more major life activities .

2) Has a record of such an impairment

3) Is regarded as having such an

impairment.


Regarded as Having a Disability

• An individual can establish coverage under “regarded as” by showing that he or she was subjected to an action prohibited by the ADA, based on an actual or perceived impairment - regardless of whether the impairment limits a major life activity.


Regarded as Having a Disability

• Clarifies that an individual is not “regarded as” impaired because of a transitory or minor impairment, and defines “transitory impairment” as one with an actual or expected duration of 6 months or less.

• Employers are not required to provide reasonable accommodation to individuals that are only “regarded as” having an impairment.


What is a Major Life Activity?

» Walking» Speaking» Breathing» Seeing» Hearing» Learning» Sitting» Standing» Thinking» Genetic health» Working?

Non- exhaustive list of activities that an average person can perform with little or no difficulty:


“Substantially Limited”

•Mitigating measures•Sutton v. United – correctable vision.•Prognosis•Remission: •Cancer •Depression•PTSD

Oscar Pistorius



ADA Fundamentals

The Five ADA Titles


Americans with Disabilities Act: Five Titles.• Title I - Employment

• Title II - Access to Public Programs & Services

• Title III - Access to Private Businesses & Services

• Title IV – Communication

• Title V - Miscellaneous


Americans with Disabilities Act: Five Titles.

• Title I –employment - applies to the employee/employer users of your target building.

• Title I does not contain any design standards.

• Titles II and III will inform the design for all others who use the same structure.


ADA Title I - EmploymentTitle I regulates all employment activities, including:

• Job applications and recruitment• Hiring and discharge• Compensation and benefits• Job assignment –reassignment • Advancement• Performance management• Annual and sick leave• Job training• Social and recreational activities• Other terms, conditions and privileges of employment.


The limits of the ADA Titles: Title I - Employment

• Title I does not provide the designer, builder or an employer the ability to bypass or have waived the SAD or other ADA design requirements.

Title I protects the individual with the disability and provides employment guidance to the employer.


ADA Title I - Employment• Prohibits discrimination on the basis of disability in the workplace for

“qualified” individuals.

• Requires reasonable accommodations (RA) be provided for qualified individuals during employment.

• Restricts questioning referring to an individual’s disability.

• Contains no design standards or guidelines


ADA Title II and Title III Both prohibit discrimination against

individuals based on disability.

Both provide regulations to remove obstacles or barriers that keep individuals with disabilities from participating fully in public activities..


Title III- Public Accommodations

• Services and goods offered by private individuals, organizations and agencies that do not utilize state or local funding for their operation or guidance. “Main Street”


ADA TITLE III: Places of Public Accommodation

• Restaurants, hotels, theaters, • Convention centers,• Retail stores and shopping centers, • Recreation centers, gyms, bowling alleys• Pharmacies • Doctors' offices and hospitals• Museums and libraries• Private schools and day care centers

Private establishments, such as:


ADA Title III Also Covers: Commercial facilities

• Commercial facilities are nonresidential facilities, including office buildings, factories, and warehouses, whose operations affect commerce.

• Private entities that offer certain examinations and courses related to educational and occupational certification.


Who is Not Covered?

• Entities controlled by religious organizations, including places of worship.

• Private clubs are not covered unless an event or service is offered to the general public.

• Housing is not covered by the ADA.


Existing Buildings Title III – Barrier Removal

• 101.2 - Public Accommodations Under Title III“RABM” Readily Achievable Barrier Removal/ModificationReadily Achievable = Without significant cost or difficulty


Existing Buildings Title III – Barrier Removal• When “readily achievable”, the

barrier removal must comply with the alterations requirements of the 2010 SAD.

• If not readily achievable, other safe, readily achievable measures must be taken to the maximum extent feasible.

• Readily achievable barrier removal in Title III was intended for clients and customers – NOT employees


Readily Achievable Barrier RemovalA public accommodation shall remove architectural barriers

in existing facilities, including communication

barriers that are structural in nature,

where such removal is readily achievable, i.e., “easily

accomplishable and able to be carried out without

much difficulty or expense.”


Readily Achievable Barrier RemovalFactors to be considered in determining whether an action is readily achievable – 1.Nature and cost.2.Overall financial resources; number of persons; effect on expenses and resources; legitimate safety; or the impact otherwise of the action upon the operation of the site.3.Geographic separateness.4.If applicable, the overall financial; the overall size of the parent corporation or entity with respect to the number of its employees; the number, type, and location of its facilities. 5.Type of operation or operations of any parent corporation or entity.


Readily Achievable Barrier RemovalExamples of steps to remove barriers include –

• Installing ramps• Making curb cuts in sidewalks and entrances• Repositioning shelves• Rearranging tables, chairs, vending machines, display racks, and

other furniture• Adding raised markings on elevator control buttons• Installing flashing alarm lights• Widening doors• Installing offset hinges to widen doorways• Eliminating a turnstile or providing an alternative accessible path


Readily Achievable Barrier RemovalExamples of steps to remove barriers include –

• Installing accessible door hardware• Installing grab bars in toilet stalls• Rearranging toilet partitions to increase maneuvering space• Insulating lavatory pipes under sinks to prevent burns• Installing a raised toilet seat• Installing a full-length bathroom mirror• Repositioning the paper towel dispenser in a bathroom• Creating designated accessible parking spaces• Installing an accessible paper cup dispenser at an existing inaccessible

water fountain• Removing high pile, low density carpeting• Installing vehicle hand controls.


Readily Achievable Barrier RemovalPriorities

First - access from public sidewalks, parking, or public transportation.

Second - access to those areas where goods and services are made available.

Third - access to restroom facilities.

Fourth - take any other measures necessary to provide access to the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation.


Readily Achievable Barrier RemovalOptions

• If the measures required to remove a barrier would not be readily achievable, a public accommodation may take other readily achievable measures to remove the barrier that do not fully comply with the specified requirements.

• For example, providing a ramp with a steeper slope or widening a doorway to a narrower width than that mandated by the alterations requirements.

• No measure shall be taken, however, that poses a significant risk to the health or safety of individuals with disabilities or others.


Fundamental Alteration of the Nature of a Program or Service

• Title II and Title III entities are not required to provide personal devices such as wheelchairs; individually prescribed devices (e.g., prescription eyeglasses or hearing aids); or services of a personal nature including assistance in eating, toileting, or dressing.


• May not refuse to allow a person with a disability to participate in a service, program, or activity simply because the person has a disability.

• Or is associated with someone who has a disability

Inclusion of People with Disabilities


Effective Communication

• Must furnish auxiliary aids and services when necessary to ensure effective communication, unless an undue burden or fundamental alteration would result.


Effective Communication

• Both Title II and Title III entities must ensure that communications with individuals with disabilities are as effective as communications with others.

• In order to provide effective communication, public and private entities are required to make appropriate auxiliary aids and services available when they are necessary to ensure effective communication.


Auxiliary Aids and Servicesqualified interpreters

• assistive listening headsets • television captioning and decoders • telecommunications devices for deaf

persons (TDD's) • videotext displays • readers • audio-tapes • brailed materials • large print materials• captioning


Auxiliary Aids and Services

• The auxiliary aid requirement is flexible. For example, a brailled menu is not required, if waiters are available to read the menu to blind customers.


Modifications in Policies, Practices, and Procedures

For example: A retail store that has a “no dogs allowed” policy must modify its policy to allow service dogs.


Accessible Facilities

• Existing Facilities– When existing facilities are not accessible

– Title II entities must provide “Program Access”.

– Title III entities must do what is “Readily Achievable”.


Title III-Readily Achievable

• Physical barriers to entering and using existing facilities must be removed when "readily achievable.

• "Readily achievable means "easily accomplishable and able to be carried out without much difficulty or expense.”


Readily Achievable

• What is readily achievable is determined on a case-by-case basis in light of the resources available.

• Does not require the rearrangement of temporary or movable structures, such as furniture, equipment, and display racks if it would result in a significant loss of selling or serving space.

• Legitimate safety requirements may be considered in determining what is readily achievable.


Readily Achievable

• Installing ramps.

• Making curb cuts at sidewalks and entrances.

• Rearranging tables, chairs, vending machines, display racks, and other furniture.

• Widening doorways.

• Installing grab bars in toilet stalls.

• Adding raised letters or braille to elevator control buttons.

Examples of barrier removal measures include:


Readily Achievable

First priority should be given to measures that will enable individuals with disabilities to "get in the front door," followed by measures to provide access to areas providing goods and services.


Readily Achievable• Barrier removal measures must comply, when

readily achievable, with the alterations requirements of the ADA Accessibility Guidelines.

• If compliance with the Guidelines is not readily achievable, other safe, readily achievable measures must be taken, such as installation of a slightly narrower door than would be required by the Guidelines.


Tax Incentives for Businesses• A tax credit for small businesses

who remove access barriers from their facilities, provide accessible services, or take other steps to improve accessibility for customers with disabilities

• A tax deduction for businesses of all sizes that remove access barriers in their facilities or vehicles



The ADA Amendments Act


ADA Amendment Act

• On January 1, 2009, the Americans with Disabilities Act (ADA) Amendments Act of 2008 went into effect.

• Since 1990, a series of Federal and Supreme court

decisions have unduly narrowed the category of who qualifies as an “individual with a disability.”


Why the need for the ADA Amendments Act?

By raising the threshold for an impairment to qualify as a disability, these court decisions have deprived individuals of the discrimination protections Congress intended to provide.

The ADAAA reestablishes Congressional intent to apply the law liberally to remedy discrimination against the protected class.


ADA Amendments Act of 2008• Amendments Act makes it easier to meet the

definition of “disability”

• Act states the definition of “disability” in the ADA “shall be construed in favor of broad coverage” and “should not demand extensive analysis”

Source: Chris Kuczynski, Equal Employment Opportunity Commission


Major Goals of the ADAAA

To restore the ADA’s broad protections as intended by Congress in 1990.

To reject the Supreme Court’s view in the Sutton v. United trilogy that “disability” should be determined by reference to the ameliorative effects of mitigating measures.


Major Goals of the ADAAA

• To reject the Supreme Court’s holding in Toyota v. Williams that the ADA requires a “demanding standard” for establishing coverage and requires that an impairment “severely restrict” major life activities

• To express Congress’s expectation that EEOC will revise its regulation that defined “substantially limits” as “significantly restricted”


ADAAA: General Rules of Construction

•Definition of disability “shall be construed in favor of broad coverage” … to the maximum extent permitted by the terms of this Act.”

• Episodic conditions are examined when active.


ADAAA: General Rules of Construction•Mitigating measures are not included when assessing substantial limitation (except ordinary eye glasses and contact lenses).

• Invisible disabilities such as brain injuries, subsequent disorders are episodic in nature and/or involve mitigating measures such as medication


Definition of “Disability” Language of basic 3-part definition remains the same:

• A physical or mental impairment that substantially limits a major life activity; or

• A record of such an impairment; or

• Being regarded as having such an impairment

But meaning of the terms has changed


Statutory Changes to Definition of “Disability”

• “Substantially limited” redefined

• Major life activities include “major bodily functions”

• Ameliorative effects of mitigating measures (other than ordinary eyeglasses or contact lenses) cannot be considered in determining “disability”

• Impairment that is episodic or in remission is a disability if it would be “substantially limiting” when active

• “Regarded as” redefined


Must be unable to perform, or be significantly limited in the ability to perform, an activity compared to an average person in the general population.

Substantially Limits


Definition of “Substantially Limited”

• When is an impairment a disability under prongs 1 or 2 of the definition?

- When it “substantially limits” (or substantially limited in the past) individual in performing a major life activity as compared to most people in general population

- “The comparison of an individual's limitation to the ability of most people in the general population often may be made using a common- sense standard, without resorting to scientific or medical evidence.”


Substantial Limitation• “An individual whose

impairment substantially limits a major life activity need not also demonstrate a limitation in the ability to perform activities of central importance to daily life in order to be considered an individual with a disability.”


Substantial Limitation

• Example: Someone with a 20-pound lifting restriction that is not of short-term duration is substantially limited in lifting, and need not also show that he is unable to perform activities of daily living that require lifting in order to be considered substantially limited in lifting.


Substantial Limitation

• “An impairment that ``substantially limits'' one major life activity need not limit other major life activities in order to be considered a disability.”

• “To the extent cases pre-dating the 2008 Amendments Act reasoned otherwise, they are contrary to the law as amended.”


Substantial Limitation• Example 1: An

individual whose endocrine system is substantially limited due to diabetes need not also show that he is substantially limited in eating or any other major life activity.


Substantial Limitation• Example 2: An

individual whose normal cell growth is substantially limited due to disease or injury need not also show that he is substantially limited in working or any other major life activity.


“Major life activity” now includes “the operation of major bodily functions” • the immune system, • normal cell growth,• digestive, bowel, bladder, • neurological, • brain, respiratory, circulatory, • endocrine, • reproductive functions.

New ADAAA coverage


Major Life Activities

– Caring for oneself– Performing manual tasks– Seeing, hearing, eating, sleeping, walking – Standing, sitting, reaching, lifting, bending– Speaking– Breathing– Learning, reading, concentrating, thinking– Communicating, interacting with others– Working (see below)


Major Life Activities– Functions of the immune system– Special sense organs– Skin– Cell growth– Digestive– Genitourinary– Bowel & bladder– Neurological– Respiratory– Circulatory, cardiovascular– Endocrine, hemic, lymphatic, musculoskeletal, and

reproductive functions


Working as a Major Life Activity

• “An impairment substantially limits the major life activity of working if:

– it substantially limits an individual's ability to perform, or to meet the qualifications for, the type of work at issue.”



• “Whether an impairment substantially limits the major life activity of working must be construed broadly to the maximum extent permitted under the ADA and should not demand extensive analysis”



• Need not be limited in a wide range of jobs

• The fact that an individual has obtained employment elsewhere is not dispositive of whether an individual is substantially limited in working.



• Example: Someone who, because of an impairment, cannot perform work that requires repetitive bending or heavy lifting is substantially limited in working, even if he also has skills that would qualify him to perform jobs that do not include these requirements.


New Statutory Rule on Mitigating Measures

• DO NOT take into account the “ameliorative effects” of mitigating measures in determining if individual is substantially limited.

• Someone who uses a mitigating measure is “individual with a disability” if impairment would substantially limit a major life activity without benefit of the mitigating measure

• Exception: ordinary eyeglasses and contact lenses


Examples of “Mitigating Measures” include:

• Medication

• Medical supplies, equipment

• Appliances, low-vision devices, prosthetics

• Assistive technology


Episodic or In Remission

• ADA Amendments Act – An impairment that is episodic or in remission is a

disability if it would be substantial when active

• Impairments that are episodic or in remission include – Multiple sclerosis– Epilepsy– Bipolar disorder– Cancer– Depression


Examples of Impairments That Will “Consistently Meet the Definition of Disability”

With some types of impairments, “the individualized assessment of the limitations on a person can be conducted quickly and easily” and they will “consistently meet the definition of disability”



– Deafness, blindness– Intellectual disability– Partially or completely missing limbs – Mobility impairments requiring wheelchair– Autism– Cancer

Source: Chris Kuczynski, Equal Employment Opportunity Commission



– Cerebral palsy– Diabetes– Epilepsy– HIV/AIDS– Multiple sclerosis– Muscular dystrophy



– Major depression– Bipolar disorder– Post-traumatic

stress disorder– Obsessive-

compulsive disorder– Schizophrenia


Examples of Impairments that May Be Disabling for Some But Not for Others

• Impairments such as asthma, back and leg impairments, carpal tunnel syndrome, and learning disabilities

• May require somewhat more analysis to determine whether they are substantially limiting for a particular individual

• Level of analysis still should not be extensive


Examples of Impairments that Usually Will Not Be Disabilities

• Temporary, non-chronic impairments of short duration with little or no residual effects are usually not disabilities:

– The common cold, – Seasonal or common influenza, – A sprained joint, – Minor and non-chronic gastrointestinal disorders, – A broken bone that is expected to heal completely


Regulatory Authority

• Previously the Supreme Court held that “no agency has been delegated authority to interpret the term “disability” through regulations.”

• The ADAAA grants the EEOC, the Attorney General, and the Secretary of Transportation authority to issue regulations interpreting the definition of disability under the ADA.


Guide for Employees• Medical conditions do not have to be disclosed unless a reasonable

accommodation is needed.– Balance confidentiality concerns with the need for an accommodation.– If performance is at issue, requesting an accommodation may help an

employee meet qualification standards.

• Requests for reasonable accommodations should identify the impairment, limitations, & accommodation preference, if known.


Guide for Employees

• Document: Reasonable accommodation requests, medical disclosures, harassment, retaliation, disparate treatment.

• Provide medical information when needed.

• Employee, not the employer should obtain medical records.


Guide for Employees

• Learn and follow polices/ procedures

• Personnel Files: You may add information or request a copy.

Great Plains ADA Center85

Are Personality Tests Medical Exams?

Karraker v. Rent-A-Center, 411 F.3d 831 (7th Cir. 2005)• Rent-A-Center used Minnesota Multiphase Personality Inventory (MMPI) for job applicants. • The Questions: Is the MMPI a medical examination?Some MMPI Questions1. I feel that it is certainly best to keep my mouth shut when I’m in trouble2. Evil spirits possess me at times3. When someone does me a wrong I feel I should pay him back if I can, just for the principle of the thing.4. I am bothered by acid stomach several times a week5. At times I feel like swearing6. I have nightmares every few nights7. I find it hard to keep my mind on a task or job9. I have had very peculiar and strange experiences


Are Personality Tests Medical Exams?• EEOC defines "medical examination" as "a procedure or test that seeks information about

an individual's physical or mental impairments or health. EEOC factors to consider in determining whether a particular test is a "medical examination" include:

– whether the test is administered and/or interpreted by a health care professional;– whether the test is designed to reveal an impairment of physical or mental health;– whether the test is invasive;– whether the test measures an employee's performance of a task or measures his/her physiological

responses to performing the task;– whether the test normally is given in a medical setting; and– whether medical equipment is used.

• " Psychological tests that are "designed to identify a mental disorder or impairment" qualify as medical examinations, but psychological tests "that measure personality traits such as honesty, preferences, and habits" do not. Id.


What This Means For Employers

The changes to the ADA significantly expand the duty of employers to make reasonable accommodation to employees with impairments that they were not required to make under recent case law.

the ada national network great plains ada center1-800-949-4232 new directions in accessibility and...

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