By Will Miller, Attorney at Law
Most people do not give much daily thought to the Americans with Disabilities Act (ADA). I know I didn’t before I lost my eyesight. However, as I adjusted to life with blindness, I learned quite a bit about the intent and implementation of the ADA. The law was enacted in 1990 and has had many amendments throughout the years. The ADA is intended to prohibit discrimination against people with disabilities across a wide spectrum. Some of the obvious things we see on a daily basis include buildings with ramps and automated door openers, accessible parking spaces, hotels with walk-in showers and safety railings, and braille lettering on elevator keypads. Less obvious are requirements related to communication and employment.
What Does the ADA Cover?
The Americans with Disabilities Act has five primary sections, or Titles, that address different aspects:
Title I: Employment
Title I has the largest impact on most businesses. This section of the law prohibits discrimination during the application and hiring process, training, and firing; it also requires businesses to provide “reasonable accommodations” for job applicants and current employees with a disability. (More on what employers need to know below.)
Title II: Public Services
Local, state and federal government agencies must ensure programs, services and activities they provide are accessible to individuals with a disability. (This section does not apply to business owners.)
Title III: Public Accommodations
This Title applies to all business owners and non-profits, regardless of the number of employees. It may also impact your Homeowner’s Association if you have a clubhouse, pool, or other facilities used by the public. Title III requires that individuals with a disability be provided equal access to goods and services, which includes a requirement that buildings open to the public be accessible to those with a disability. Specifically, new construction and renovations require the contractor to deliver a building that complies with the 2010 ADA Standards for Accessible Design. For existing buildings, the owner has an ongoing obligation to ensure the building is accessible by removing barriers to access for individuals with a disability when it can be done for a reasonable cost, and all additions and renovations must comply with the 2010 ADA Standards.
Title IV: Telecommunications
Telecomm providers are required to provide relay services that will allow those who are hearing or speech impaired to communicate using a TTY or other devices that do not require speech.
Title V: Other
Among other things, Title V addresses potential coercion or threats against individuals trying to enforce their rights under the ADA. If you own a business and an applicant or employee asks for a reasonable accommodation, you need to take the request seriously.
How is Disability Defined?
The Americans with Disabilities Act defines disability as, “a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment. The ADA does not specifically name all of the impairments that are covered.” It is important for businesses to note that in certain cases, caregivers – for instance the parent of a child who is disabled – or other advocates associated with the individual who is disabled may also be protected under the law.
What Business Owners Must Know About the ADA
Businesses are primarily impacted by Titles I and III, though owners and managers should be aware of the provisions of Title V. Here are some key things to remember:
- Your business or non-profit should make a reasonable effort to accommodate customers with disabilities. Some good examples: grocery stores that provide motorized carts for shoppers with limited mobility or shop for (or with) a customer who is sight impaired; airlines that allow those with impairments to board early; or theaters that offer periodic showings of movies at a lower volumes for those with sensory challenges. Not only do these actions help comply with the ADA, they can be good for business.
- The ADA prohibits employment discrimination during the application and hiring process, and includes training, dealing with current employees, and firing. If you have more than 15 employees, you must comply with the ADA regulations, though I recommend all employers do what they can to ensure those who have a disability can work. One of the most important requirements for employers is offering a “reasonable accommodation” to an applicant or employee that will enable them to do the job. Some of these can be simple and inexpensive to implement. For example, for someone who is visually impaired, you might provide screen reader software so they can hear what’s on the computer screen, change company policy to allow their guide dog in the office or adjust their work hours slightly to accommodate the public transit schedule. If the individual travels on business, adjust the company’s business travel rules to allow for a taxi or ride share versus renting a car. Physical tools, slight adjustments to the job requirements, or schedule/policy changes can go a long way toward ensuring individuals with disabilities are able to do their jobs and do them well.
It is important to note that the ADA does not require businesses to make accommodations that are unreasonably expensive or difficult to implement. The challenge becomes determining where that line is. In any case, if an applicant or employee requests a reasonable accommodation, you should investigate what options are available, how costly they might be to implement, and how they might impact your business. Document your efforts. If you determine the accommodation would be cost-prohibitive and choose not to hire that applicant, you may need to justify your decision.
- All businesses and non-profits must ensure their buildings are accessible to customers and employees. Should you have an older building with barriers to entry for individuals with disabilities, I recommend investigating what it would take to remove these barriers and make the building accessible. If you cannot afford to make the changes, at least you will have documentation proving you made an effort to do so.
Who enforces the ADA?
While many of the rules within the ADA apply strictly to businesses with 15 or more employees, other rules apply to all employers. The trick is to understand which impact your business so you remain in compliance with the law. Enforcement is handled somewhat piecemeal, with different federal agencies charged with ensuring compliance for their area of responsibility. As an example, the Federal Communications Commission works to ensure telephone and internet providers offer service options for the deaf and hard of hearing, while the Department of Health and Human Services would be responsible for ensuring a hospital receiving federal funds offered a sign language interpreter for a deaf person requesting assistance on arrival in the emergency room. Most employment cases are handled by the Equal Employment Opportunity Commission or the Civil Rights Center.
Compliance Challenges
If your business or organization receives a complaint about non-compliance with the ADA, you may wish to speak with an attorney familiar with the Americans with Disabilities Act. Contact Brinkley Walser Stoner today to schedule an appointment.