The Americans With Disabilities Act of 1990

Overview Of The ADA

On July 26, 1990 President Bush signed into law the Americans With Disabilities Act of 1990. The Americans With Disabilities Act has become widely known as the "ADA." At that time, Hale and Dorr published a special "Legislative Update" to help clients understand the ramifications of the ADA. In proposing and drafting the ADA, Congress found that approximately 43,000,000 Americans have disabilities and are discriminated against in the areas of employment, housing, public accommodations, education, transportation, communications, and health services. Congress signed the ADA into law to eliminate discrimination against individuals with disabilities and to provide a system for disabled Americans to obtain legal redress for unlawful acts.

The ADA is divided into four major areas that are called Titles. Title I of the ADA prohibits discrimination in private employment on the basis of "disability." Title III of the ADA prohibits discrimination in the provision of public accommodations and commercial facilities. The remaining titles address discrimination against individuals with disabilities in public services and telecommunications.

Employment portions of the ADA take effect on July 26, 1992 for businesses with 25 or more employees and on July 26, 1994 for businesses with 15 or more employees. The real estate aspects of the ADA became effective on January 26, 1992.

This special ADA newsletter was prepared by Hale and Dorr's Labor and Human Resources, Employee Benefits, and Real Estate Departments, as an update to our 1990 newsletter. It has been designed to assist employers in a comprehensive way in identifying their new legal obligations under Titles I and III of the ADA and to provide information for complying with those titles of the ADA.

Title I - Employment

Title I of the ADA prohibits discrimination against a "qualified individual with a disability" in regard to the terms and conditions of employment including application procedures, decisions to hire, promote, discharge, and train. Title I requires employers and other covered entities to make reasonable accommodations for a qualified individual with a disability unless it would cause an undue hardship.

Enforcement Agency

The Equal Employment Opportunity Commission ("EEOC") is charged with the enforcement of Title I and has issued implementation and interpretive regulations for the ADA.

Powers, Procedures and Remedies Available Under the ADA

The ADA adopts all powers and procedures established in Title VII of the Civil Rights Act of 1964. Therefore, individuals filing a complaint under the ADA must file a discrimination charge with the EEOC. Complaints must be filed within 180 days of the alleged discriminatory act or within 300 days in states with approved enforcement agencies (Massachusetts is such a state, as is New Hampshire).

The ADA has the same remedies as are available under Title VII including reinstatement, back pay, job offer, attorneys` fees, jury trials and, where appropriate, compensatory and/or punitive damages.

Entities Covered By Title I

Title I covers employers, employment agencies, labor organizations, states and joint labor-management committees.

Understanding Key Terms in the ADA

Disability: The ADA defines the term disability to include:

• A physical or mental impairment that substantially limits one or more major life activities, or;

• A record of a physical or mental impairment substantially limiting a major life activity, or;

• Being regarded as having a substantially limiting physical or mental impairment.

The ADA specifically excludes current illegal drug use from the definition of disability.

Qualified Individual With A Disability: A "qualified individual with a disability" is an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the job that the individual holds or desires.

Reasonable Accommodation: Title I requires employers and other covered entities to make reasonable accommodation to a qualified individual with a disability unless it will cause an undue hardship on the operation of the business. Reasonable accommodation may include:

• making existing facilities accessible to and usable by an individual with a disability.

• rearranging work schedules, restructuring jobs, altering existing equipment, modifying examinations and training materials providing qualified readers or interpreters and other similar accommodations.

Undue Hardship: An action by the employer or other covered entity requiring significant difficulty or expense.

Essential Functions of the Job: The regulations implementing the ADA define essential functions of the job to mean a fundamental duty of the position in question. Marginal aspects of the job are not included in this definition. A written description of the job prepared before it is advertised is considered evidence of the essential functions under the implementation regulations.

Acts Constituting Discrimination Under Title I of the ADA

• Title I of the ADA prohibits discrimination against a qualified individual with a handicap in the terms and conditions of employment. Title I provides the following listing of prohibited discrimination. This listing was not intended by Congress to be exclusive and should therefore only be used for guidance.
  • Classifying or segregating an applicant or an employee on the basis of a disability that adversely affects the individual's terms and conditions of employment.

  • Participating in a contract with a third party that discriminates or has the effect of discriminating against a qualified applicant or employee with a disability.

  • Using standards, criteria or methods in making employment decisions that have the effect of discriminating against individuals with a disability or perpetuate discrimination against individuals with a disability.

  • Excluding or denying equal jobs or benefits to a qualified individual because he/she is associated with an individual who has a disability.

  • Refusing to make reasonable accommodations for the known physical or mental impairments of an otherwise qualified individual with a handicap unless the covered entity can demonstrate that the reasonable accommodation would cause an undue hardship.

  • Denying employment opportunities to a qualified individual with a disability on the basis of a refusal to make reasonable accommodations to the known physical or mental impairments of the applicant or employee.

  • Using qualification standards, employment tests or other selection criteria that screen out or tend to screen out individuals with a disability unless the standards are shown to be job related.

  • Failing to select and administer employment tests in the most effective manner to ensure that when the test is administered to an applicant or employee with a sensory, manual or speaking disability the test results accurately reflect the factors the test intended to measure rather than the disability of the applicant or employee (except where such skills are the factors the test intends to measure.)

• The regulations implementing the ADA clearly state that it is illegal for a covered entity to discriminate against a qualified individual with a disability in regards to advertising job openings, hiring, promotion, firing, pay, job assignments, benefits, training and any other term, condition or privilege of employment.

The ADA Has Many Massachusetts Parallels

For Massachusetts employers, Chapter 151B of the Massachusetts General Laws has for many years prohibited discrimination on the basis of handicap ("disability" under the ADA) and has imposed on employers a reasonable accommodation requirement. In 1986, the Massachusetts Commission Against Discrimination promulgated regulations regarding handicap discrimination under Chapter 151B. These regulations have imposed on Massachusetts employers many of the same requirements that the ADA will impose when it becomes effective in July, 1992. Some examples of Massachusetts requirements in effect at the present time are the following:

• The term "handicap" is defined by the Massachusetts regulations in a manner that is essentially identical to the definition of "disability" under the ADA.

• The Massachusetts regulations and the ADA impose strict requirements on employers who wish to conduct physical examinations of prospective employees, and state that physical examinations may be required only after employment offers have been extended.

• In Massachusetts, as well as under the ADA, individuals who have been alcohol or drug dependent and who have completed rehabilitation programs are protected as falling within the handicap regulations.

• Both Massachusetts and the ADA impose upon employers a requirement of reasonable accommodation for an individual's handicap, unless the employer can prove undue hardship.

• Both Massachusetts and the ADA include in the definition of "disability" or "handicap" those individuals who are perceived by others as having an impairment.

How Does The ADA Affect Employee Benefits?

• Employees with disabilities must be given equal access to whatever insurance or benefit plans the employer provides.

• Employers cannot deny insurance to an individual with a disability or subject an individual with a disability to different terms or conditions of insurance, based on disability alone, if the disability does not pose increased insurance risks.

• An employer cannot fire or refuse to hire an individual with a disability because the employer's current health insurance plan does not cover the individual's disability, or because the individual may increase the employer's future health costs. However, the employer is not required to add coverage for the disability.

• An employer cannot fire or refuse to hire an individual (whether or not that individual has a disability) because the individual has a family member or a dependent with a disability that is not covered by the employer's current health insurance plan or that may increase the employer's future health costs.

• Employers may continue to provide coverage in accordance with accepted principles of risk assessment and/or risk classification, as required or permitted by state law or in a manner consistent with basic accepted principles of insurance risk classification, even if this results in limitations in coverage to individuals with disabilities. Thus, an employer may continue to offer health insurance plans that contain preexisting condition exclusions, even if this adversely affects individuals with disabilities.

• An employer may continue to offer health insurance plans that limit coverage for certain procedures and/or limit particular treatments to a specific number per year, even if these restrictions adversely affect individuals with disabilities, as long as the restrictions are uniformly applied to all individuals covered by the plan regardless of the disability. The EEOC has stated that an employer can offer a health insurance plan that limits coverage of blood transfusions to five transfusions per year for all employees, even though an employee with hemophilia may require more than five transfusions per year. However, the employer could not deny this employee coverage for another, otherwise covered procedure, because the plan would not pay for the additional blood transfusions that the procedure would require.

• An employer may also offer health insurance plans that limit reimbursement for certain types of drugs or procedures even if these restrictions adversely affect individuals with disabilities as long as the restrictions are uniformly applied without regard to disability. For example, an employer could offer a health insurance plan that does not cover experimental drugs or procedures, as long as this restriction is applied to all insured individuals.

• It also seems likely that the limits on treatment for nervous disorders or substance abuse could be subject to limits as long as the limits were applied uniformly without regard to disability.

The permitted practices described above are permitted only so long as the practice is not being used as a subterfuge to evade the intent of the ADA. At this point in time, there is no guidance as to what constitutes a subterfuge. However, elimination or reduction of the coverage for certain treatments after the employer learns that a disabled employee is the only employee who requires that coverage would likely be treated as a subterfuge.

Title III -- Public Accommodations and Commercial Facilities

Title III regulates real estate, affecting over five million existing private entities and the alteration and construction of many more private facilities.

Title III contains two significant requirements. One applies only to public accommodations, and mandates that public accommodations provide auxiliary aids and services to disabled individuals and remove architectural barriers where readily achievable. This requirement applies to all existing and new public accommodations.

The other requirement applies to commercial facilities and to public accommodations, and mandates that alterations and new construction of both types of facilities be accessible to disabled individuals. This requirement is triggered only when an entity engages in alterations or new construction.

Public Accommodations

The ADA lists twelve types of facilities that are "places of public accommodation." The most significant public accommodations are as follows:

• any place of lodging or any establishment serving food or drink;

• any place of entertainment or public gathering;

• any sales or rental establishment;

• any service establishment (including insurance, accountants' and attorneys' offices);

• any museum or place of education;

• any social service center establishment; and

• any place of exercise or recreation.

Commercial Facilities

"Commercial facility" is broadly defined as any facility that is intended for non-residential use and whose operations affect commerce. Commercial facilities include factories, warehouses, and research and development facilities.

Public Accommodation Requirements

Auxiliary Aids and Services

The ADA requires that public accommodations provide appropriate auxiliary aids and services to ensure that disabled individuals have equal access to public accommodations. This provision means that public accommodations must provide aids such as brailled reading materials and services such as interpreters for the deaf to ensure effective communication with disabled individuals.

Readily Achievable Barrier Removal

Existing public accommodations also must remove architectural barriers where such removal is "readily achievable." Typical barrier removal actions include installing ramps, widening doors, and making curb cuts in sidewalks. A barrier removal is "readily achievable" if it may be easily accomplished without much difficulty or expense.

How To Comply With Title III

Public Accommodations - Barrier Removal

Currently, public accommodations must be in compliance with Title III or face private lawsuits or governmental compliance actions.

Accordingly, a public accommodation should consider creating an implementation plan for removing the barriers in its facility. Such a plan would do the following:

• Survey a facility for architectural barriers;

• Identify readily achievable barrier removal actions; and

• Establish procedures for periodic reviews of a facility.

A public accommodation also should consider soliciting the advice of groups representing the disabled and documenting carefully any measures taken to comply with the Act. Any barrier removals should be undertaken according to the priorities suggested by the ADA.

Public Accommodations - Auxiliary Aids

In conjunction with a barrier survey, public accommodations should survey a facility to determine what types of auxiliary aids are appropriate. Disabled individuals could assist a public accommodation in this task.

Alterations and New Construction

Alterations and new construction of commercial facilities and public accommodations should comply with the ADA's technical guidelines for accessible design.

Questions & Answers

Are distinct physical characteristics considered a disability under the ADA? Is age or homosexuality considered a disability?

Disability is defined to include a physical or mental impairment. A physical impairment is generally defined as a physiological disorder or condition, disfigurement or anatomical loss. Mental disorders include mental or psychological disorder including mental retardation, emotional illness and learning disabilities.

The term "physical and mental impairment" was not intended to included minor physical or mental impairments or distinct physical characteristics such as average height or being left-handed. The interpretive regulations state that pregnancy is not considered a disability under the Act.

An individual's age is not a disability as defined under the ADA. Yet, an older person with a physical impairment that deteriorates with age may be considered disabled under the ADA due to the deteriorating physical impairment.

Homosexuality and bisexuality are not considered disabilities under the ADA.

Does a "record" of a physical or mental impairment only include employment records?

A record of disability includes any information that classifies an individual, even erroneously, as having a disability. The definition of "disability" that includes individuals with a record of a physical or mental impairment is intended to protect individuals who have been misclassified as having a disability as well as those individuals who have recovered from a disability.

Are individuals who are perceived by others as having a disability considered disabled under the ADA?

The third definition under the term "disability" includes those individuals;

• treated or perceived as being disabled under the ADA even though their impairment does not limit major life activities;

• with an impairment that limits their major life activities only because of how they are perceived by others;

• who do not have an impairment limiting their major life activities but are perceived as having such an impairment, and;

• who currently do not exhibit an impairment affecting a major life activity but have a history of such an impairment.

This definition would, for example, include individuals who have epilepsy or the HIV virus.

A "qualified individual with a disability" must be capable of performing the essential functions of the job. Does this mean that an employer must hire a disabled individual if he can perform the essential functions even if he is not the most qualified applicant?

No. The employer should hire the most qualified applicant for the job. The employer's decision must be based on reasons unrelated to the existence of a disability or the potential reasonable accommodations that may have to be made for a qualified individual with a disability.

In determining what constitutes essential job functions, an employer's judgment of the fundamental functions of the job will be taken into consideration. The contents of job advertisements, job descriptions and collective bargaining agreements will also be considered as evidence of essential job functions. The determination of whether an applicant is a qualified individual must be based on the capabilities of that person at the time of the employment decision and cannot be based on speculation that the employee will be unable to perform the job in the future.

Would an employer be in violation of the ADA by refusing to promote an employee because her husband had a known disability and the employer feared that the employee would not dedicate the proper time to the job?

One of the prohibited forms of discrimination under Title I of the ADA includes the exclusion or denial of equal jobs to a qualified individual who has a relationship with a disabled person. Other discrimination against an individual who has a relationship with a disabled person is also prohibited. The employer's denial of a job promotion on the basis of the employee's relationship with her disabled husband would be consider a discriminatory act under the ADA. However, if the employer promoted the employee and she later violated tardiness and absenteeism policies, the employer would not be in violation of the ADA by disciplining the employee even if the reason for the employee's violation of policy was because she was caring for or assisting her disabled husband.

If an employee has not self-identified himself as having a disability requiring reasonable accommodation, can an employer later be found in violation of the ADA for failing to provide reasonable accommodation?

The ADA states that an employer's duty to provide reasonable accommodation is for known disabilities. To be an individual with a known disability, the employee would have to self-identify himself or herself as having a disability or request a reasonable accommodation.

How can an employer take voluntary action to recruit and hire qualified individuals with a handicap if the employer cannot inquire if the applicant is disabled?

Employers can ask applicants to voluntarily disclose any disabilities if the purpose of the disclosure is to recruit and hire individuals with a disability or if the employer is a federal contractor. Any inquiries made by the employer should clearly state that any information provided is done so on a voluntary basis, the failure to supply the information will not adversely affect their application and the sole purpose of the information is to assist the employer in hiring qualified individuals with a disability. The applicant must also be told that all information will be kept confidential and will be used in accordance with the ADA.

Can an employer make an employment offer that is contingent on the completion of a physical examination?

An employer may require a medical examination after extending an employment offer and prior to the commencement of employment. The employer may also condition the offer of employment on the results of the examination if;

• all employment offers are contingent on the results of an examination regardless of disability;

• the information obtained regarding the medical condition or history of the applicant is collected and maintained in a separate medical file and is treated as a confidential medical record, and;

• the results of the medical examination are used in accordance with Title I of the ADA.

The ADA prohibits pre-employment physicals and inquiries to determine if an applicant has a disability or to ascertain the nature and extent of the disability. Employers are also prohibited from asking questions on applications pertaining to an individual's health, past medical history and workers' compensation claims.

An employer or other covered entity may ask an applicant if he or she is capable of performing the essential job functions.

Can the employer discuss the information obtained from the medical examination with the employee's manager?

The employer has an obligation to keep all information acquired as a result of a medical examination confidential. This exception does not apply to supervisors and managers who must be informed of the employee's work restrictions or necessary accommodations, first aid and safety personnel, and government officials investigating the employer's compliance with the ADA. The interpretive regulations state that the ADA does not prevent an employer from complying with the injury reporting requirements of state mandated workers' compensation laws. However, employers may not inquire about an individual's workers' compensation history before a job offer is extended.

Can an employer require an employee to submit to a medical examination?

As discussed above, an employer cannot require an employee to submit to a medical examination or inquire as to whether or not the employee is disabled or the extent of the disability unless the examination or inquiries are job-related and consistent with business necessity.

An employer may, however, offer voluntary medical examinations as part of an employee health program.

All information obtained by an employer regarding an employee's disability must be maintained as confidential information and may not be disclosed except as mentioned above.

How does an employer determine if a request for reasonable accommodation would be considered an undue hardship?

The decision as to whether or not a request for a reasonable accommodation would constitute an undue hardship on the employer would depend on the facts of each case. The ADA provides factors to be considered in determining if a request for reasonable accommodation would cause undue hardship. These factors include the nature and cost of the accommodation, the financial resources of the facility involved, the number of employees at the facility, the economic impact of the accommodation on the facility, the type of operations performed at the facility, the structure, function and composition of the work force at the facility and the total number of facilities. This list is not exhaustive, but is intended to provide some guidance in evaluating whether or not the requested accommodation would constitute an undue hardship on the employer or covered entity.

Is the employer obligated to provide the requested reasonable accommodation if it is not an undue hardship?

The employer or other covered entity must provide the requested reasonable accommodation if it is not an undue hardship and if the reasonable accommodation would enable the disabled individual to perform the essential functions of the job.

Is an employer's obligation to provide reasonable accommodations only related to assisting a qualified individual with a disability?

Although the reasonable accommodation duty outlined in Title I of the ADA does not specifically address this issue, the other Titles of the Act, as well as the interpretive regulations, impose on the employer the duty to provide employment facilities accessible by disabled individuals. Such facilities would include food and beverage areas, day care and social service centers, sport facilities, transportation services and telephone and mail services.

One of the definitions of discrimination uses the term "qualification standards." Does the ADA describe this term?

The definition of "qualification standards" is included in Title I under the section entitled Defenses. Qualification standards may include a requirement that individuals will not pose direct threat to the health or safety of others that cannot be eliminated by reasonable accommodation. The interpretive regulations state that an employer can also establish a qualification standard that requires that an individual is not a direct threat to his or her own safety.

What defenses are available to a charge of discrimination under Title I of the ADA?

Title I of the ADA states that an employer may defend a charge of discrimination by demonstrating that all qualification standards and any other selection devices that screen out or tend to screen out individuals with a disability are job-related and consistent with business necessity and the job-related functions cannot be performed by reasonable accommodation.

Is an employer required to hire or retain a qualified individual with a disability if the individual poses a safety threat to other employees?

An employer is not required to hire or retain a qualified individual with a disability if the individual poses a safety threat to other employees, provided reasonable accommodations would not alleviate the safety threat.

Is an employee or applicant who is currently using illegal drugs considered a qualified individual with a disability?

Title I of the ADA clearly states that an applicant or employee who is currently using illegal drugs is not a qualified individual with a disability.

Individuals who have successfully completed a drug rehabilitation program and no longer use illegal drugs and those participating in a rehabilitation program and who are drug free are considered qualified individuals with a disability.

Title I also provides coverage for individuals who are erroneously perceived as using illegal drugs.

How does the ADA affect an employer's drug testing policies?

The ADA does not prohibit policies and procedures, including drug testing, used to ensure that individuals who have identified themselves as qualified individuals with a disability on the basis of the prior use of illegal drugs have ceased using illegal drugs.

Employers may prohibit the use of illegal drugs and alcohol in the workplace and require all employees not be under the influence of alcohol or drugs while at work. Employers may also require that employees conform to the requirements in the Drug-Free Workplace Act of 1988.

Drug tests under the ADA are not considered medical examinations.

If an employee is a poor performer and is also an alcoholic will an employer be in violation of the ADA if he takes corrective action up to and including discharge of the employee?

Title I states that employers may hold an employee who uses illegal drugs or alcohol to the same "qualification standards" for job performance that the employer expects of every other employee, even if the poor performance is related to drug addiction or alcoholism. The qualification standards must be neutral, relate to the performance of the job function and be evenly applied to all employees.

Does the ADA require an employer to post any notices?

All covered entities are required to post notices describing the provisions of Title I in areas accessible to applicants and employees.