The Americans with Disabilities Act – 25 Years in the Making

2. Michael E. Ginsberg, Esq. Pattison, Sampson, Ginsberg & Griffin, P.C. 22 First Street, P.O. Box 208 Troy, New York 12181-0208 (518) 266-1026 (518) 274-6034 Fax mginsberg@psgglaw.com

3. THE AMERICANS WITH DISABILITIES ACT25 YEARS IN THE MAKING

4. HISTORY • Signed into law on July 26, 1990, by President George H.W. Bush. • Civil rights legislation that prohibits discrimination on the basis of disability. • Modeled after the Civil Rights Act of 1964 (prohibits discrimination on the basis of race, color, religion, sex, or national origin) and Section 504 of the Rehabilitation Act of 1973.

5. PURPOSE • To provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.

6. APPLICABILITY • Title I - Employment • Covered Entity • means any employer, employment agency, labor organization, or joint labor-management committee. • Employer • A person engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year.

7. ANTI DISCRIMINATION • “No covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.”

8. QUALIFIED INDIVIDUAL • Means an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. • Employer decides essential functions. • Written description of position controls.

9. REQUIREMENTS OF EMPLOYERS • Reasonable accommodation • making existing facilities used by employees readily accessible and usable. • i.e. modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, adjustment or modifications of exams, training materials or policies, providing qualified readers or interpreters, etc.

10. CONT. • Unless: • Such Reasonable Accommodation Creates an Undue hardship. • An action requiring significant difficulty or expense. • Factors to be considered: • Nature and cost of the accommodation needed. • Overall financial resources. • Number of persons employed. • Effect on expenses and resources. • type of operation, including the composition, structure, and functions of the workforce.

11. USE OF DRUGS AND ALCOHOL • Treated as a disability if: • Employee has successfully completed a supervised drug rehabilitation program. • Employee is participating in a supervised rehabilitation program and is no longer engaging in such use. • EXCEPTION: maintain policies of drug testing, designed to ensure that an individual is no longer engaging in the illegal use of drugs.

12. CONT. • Employer may prohibit illegal use of drugs and use of alcohol at the workplace. • May hold an employee to the same standards as other employees, even if unsatisfactory performance or behavior is related to the drug use or alcoholism of such employee.

13. TITLE II • Title II - PUBLIC SERVICES • Public Entity • Means any State or local government; • any department, agency, district, or other government instrumentality.

14. ANTI DISCRIMINATION • No qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.

15. QUALIFIED INDIVIDUAL WITH A DISABILITY • means an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for services or the participation in programs or activities provided by a public entity.

16. APPLICABILITY • Public Transportation Provided by Public Entities; • Designated Public Transportation. • Bus, Train, etc. • Fixed route system • Prescribed route according to a fixed schedule. • Public school transportation.

17. Reqs. • Must be readily accessible and usable by individuals with disabilities - wheelchairs. • Paratransit as a complement to fixed route service. • sufficient to provide level of service • comparable to the level provided to individuals without disabilities; or • response time comparable to level provided to individuals without disabilities using such system.

18. Title III • Title III - PUBLIC ACCOMMODATIONS AND SERVICES OPERATED BY PRIVATE ENTITIES.

19. ANTI DISCRIMINATION • No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.

20. APPLICABILITY • Public accommodation. • Place of lodging - hotel, motel. • Restaurant, bar. • Theater, concert hall or stadium. • Place of public gathering - auditorium, etc. • Sales or rental establishment - grocery store, clothing store, etc. • Service establishment - bank, barber shop, etc. • Station used for public transportation. • Place of public display or collection – Museum.

21. Cont. • Place of recreation - zoo, amusement park. • Nursery, elementary, secondary, undergraduate, or postgraduate private school. • Social service center establishment - day care center, senior citizen center, homeless shelter, food bank, adoption agency. • Place of exercise or recreation - gymnasium, health spa, bowling alley, golf course.

22. REQS. • Cannot deny the opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of an entity. • Cannot provide unequal benefit - not equal to that afforded to other individuals. • Cannot provide separate benefit - separate from that provided to others unless necessary

23. Cont. • Most integrated setting appropriate to the needs of the individual (goods, services…) • Cannot be denied the opportunity to participate – with reasonable accom. • Cannot utilize standards or criteria or methods of administration that have the effect of discriminating on the basis of disability.

24. Cont. • Exception: • Where such individual poses a direct threat to the health or safety of others. • New construction and alterations in public accommodations and commercial facilities. • Beginning 30 months after July 26, 1990(Jan 1992). • New facilities must be readily accessible and usable. • Exception – where structurally impracticable.

25. Cont. • Alterations of facilities. • Altered portions of the facility must be readily accessible and usable. • Wheel chairs, sight and hearing impaired.

26. ENFORCEMENT • Filing a complaint • EEOC. • State Div. Human Rts. • Other Applicable Administrative Body. • Investigation • EEOC • Div. Human Rts. • U.S. Atty. General / U.S. Ed. Dpt. - OCR

27. Cont. • Lawsuit • Prerequisites • Exhaust Administrative Remedies • Title I • Complaint to EEOC or State Div. Human Rts. • EEOC – within 180 days (300 if state agency enforces law prohibiting) • State Div. Human Rts. – within 180 days.

28. CASE STUDIES

29. REFERENCES • http://www.eeoc.gov/employees/howtofile.cfm • http://www.dhr.ny.gov/how-file-complaint • http://labor.ny.gov/equal-opportunity/how-to-file-a-discrimination-claim.shtm