ADA Title I, II, and Title III

1
ADA Title I, II, and Title III

• Employment and Accessibility
• J.J. Rico, Managing Attorney
• 520-327-9547, ext 331

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Who Is A Qualified Individual With A Disability

• Disability under the ADA means a physical or
  mental impairment that substantially limits one
  or more major life activities

• QID To be protected by the ADA, a person must
  be able to prove s/he is a qualified individual
  with a disability.
• Disability The term "disability" has a special
  meaning under the ADA.

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ADA Amendment Act- Scope of Definition
Substantially Limits

• No changes to definition but changes on how to
  interpret definition.
• Now there is less demanding standard to cover
  broad range of individuals

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Substantial limitation

• Means that an individual is unable to perform, or
  is significantly limited in the ability to
  perform, an activity compared to an average
  person in the general population

• Look to three factors
• the nature and severity of the impairment
• how long the impairment will last or is expected
  to last and
• the permanent or long term impact or expected
  impact of the impairment

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ADA Amendment Act Substantial Limitation

• ADAAA rejects the Supreme Courts decision in
  Toyota v. Williams interpretation of
  substantially limits
• Rejects that an impairment substantially
  limits a major life activity if it prevents or
  severely restricts the individual from
  performing the activity

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Other major life activities

• Walking
• Running
• Seeing
• Hearing
• Thinking
• Speaking
• Breathing
• Eating
• Lifting, Bending, Stooping

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Major Bodily Functions

• Functions of the immune system
• Digestive
• Bowel
• Circulatory
• Neurological
• Brain

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OLD Mitigating Measures Rule

• Effect of Medication and Corrective Devices on
  Disability Determination
• Sometimes, medication, corrective devices, such
  as eye glasses and hearing aids, may actually
  fully correct a medical condition or impairment.

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NEW Mitigating Measure Rule

• The determination of whether an impairment
  substantially limits a major life activity shall
  be made without regard to the ameliorative
  effects of mitigation measures such as
• Medication , medical suppliesprostheticshearing
  aidsassistive technology
• Exception is ordinary eye glasses and contact
  lenses that fully correct visual acuity

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Four ways a Person Without a Disability is
Protected by the ADA

• A qualified individual who has a record of a
  disability or substantially limiting impairment.
• (An impairment that is episodic or in
  remission is a disability if it substantially
  limits a major life activity when active)
• A qualified individual who is regarded as having
  such an impairment. (Applies if subjected to an
  action prohibited by Act)
• An individual who has a known relationship or
  association with an individual with a disability.
• An individual who has opposed a discriminatory
  practice. Retaliation.

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ADA Amendment Act Regarded As Having a
Disability

• The ADAA provides that an individual can
  establish coverage under the regarded as prong
  by showing that he or she was subjected to an
  action prohibited by the ADA.

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Who is a Covered Employer

• Employer must have at least 15 or more employees
• Includes a location or facility of a business
  with less than 15 employees whose total number of
  employees for the company in all locations and
  facilities combined equals 15 or more.
• Other laws may apply to persons with disabilities
  who are employed by smaller businesses.

13
The ADA also applies to state and local
governments.

• Includes all state and local governmental
  agencies, departments and entities regardless of
  their size or number of employees.
• Examples of state and local employers include
  public schools, public universities, police and
  fire departments, public libraries, museums,
  public parks and recreation facilities, and
  social welfare offices.

14
Federal Government Not Covered by the ADA

• Federal employers are covered by the
  Rehabilitation Act of 1973. However, the
  protections available under the ADA are also
  available under the Rehabilitation Act. The main
  difference between these two laws are the
  administrative procedures that an employee or
  applicant must exhaust to later be able to file a
  lawsuit.

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Being Qualified Under the ADASkills, Experience
and Education

• A person with a disability must meet the minimum
  job qualifications for the job. Job
  qualifications include but are not limited to the
  skill, experience, education, medical, safety,
  physical and other requirements a covered
  employer sets as requirements for a job.

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Qualifications

• Must not screen or tend to screen out people with
  disabilities be job-related
• Must be job-related
• Must be a business necessity
• Performance can not be accomplished by a
  reasonable accommodation
• Essential v Marginal Job Functions

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Essential job functions

• Factors to consider
• written job descriptions before the position was
  advertised for
• employers opinion
• duties other people in the same position perform
• duties other people performed who held the same
  position
• duties of past employees in similar positions
• terms of a collective bargaining agreement

• Essential v. marginal
• Essential functions are important and necessary
  job duties
• Must be able to perform these duties
• Qualified whether need an accommodation or not

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ADA Statutory Provision

• Discrimination includes an employers failure to
  make reasonable accommodations to the known
  physical or mental limitations of an otherwise
  qualified employee or applicant, unless the
  employer can demonstrate that the accommodation
  would impose an undue hardship on the operation
  of its business. 42 U.S.C. 12112(b)(5)(A).

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Reasonable Accommodations

• Includes making facilities accessible and usable
  by individuals with disabilities
• Job restructuring
• Part-time or modified work schedules
• Acquisition or modification of equipment or
  devices

• Appropriate adjustment or modification of
  examinations, training materials or policies
• The provisions of qualified interpreters and
  readers and
• Reassignment to a vacant position and
• Any other similar accommodations for people with
  disabilities.

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When can disability related questions be asked?

• Yes After job offer extended but before you
  actually begin work OR
• Yes After first day of work BUT ONLY IF job
  related and consistent with business necessity
• NO- If not for reasons above OR anytime before
  job offer extended

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Keeping Medical Information Confidential

• The ADA requires employers to keep protected
  medical records confidential with a few limited
  exceptions for disclosure.

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When disclosure of a disability may be
appropriate ?

• Supervisors who need to know because the medical
  information relates to job assignments or
  accommodations.
• Safety personnel if the disability or med
  condition may require emergency treatment.

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Enforcement

• File a complaint of discrimination with the
  Arizona Attorney Generals Office, Civil Rights
  Division under the states Arizonans With
  Disabilities Act (AzDA), by calling
• [phone] or TDD [phone]
• in Phoenix, -or-
• [phone] or TDD [phone]
• in Tucson.
• Complaints must be filed within 180 days from
  the date of the discrimination.

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Enforcement

• File a complaint of discrimination with the Equal
  Employment Opportunity Commission (EEOC)
• An individual may start the process by going to
  the EEOC office or calling the office. Its
  address and telephone number are
• [phone] (Voice)
• [phone] (TTY)
• [phone] (voice for people living outside
  Phoenix)
• [phone] (TTY for people living outside
  Phoenix)
• Complaints must be filed within 300 days from
  the date of the discrimination.

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Title II and III of the ADA?

• Individual with a disability
• Actual disability
• History of a substantially limiting impairment
• Regarded as having a substantially limiting
  impairment
• Qualified depends upon whether there are
  qualifications for participation in the place of
  public accommodation.

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Title II applies to public entities

• Any state or local government
• Any department, agency, special purpose district,
  or other instrumentality of a State or States or
  local government and
• The National Railroad Passenger Corporation and
  any commuter authority.
• 42 U.S.C. 12131

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Examples of covered programs (Title II)

• State legislatures
• State courts
• Town meetings
• Police and fire departments
• Motor vehicle licensing
• Libraries and parks

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Title III applies to. . .

• Places of public accommodations,
• Commercial facilities, and
• Private entities that offer examinations or
  courses related to applications, licensing,
  certification or credentialing for secondary or
  post secondary education, professional or trade
  purposes.

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Places of Public Accommodation

• an inn, hotel, motel or other place of lodging
• a restaurant, bar or other place serving food or
  drink
• a motion picture house, theater, concert hall,
  stadium or other place of exhibition or
  entertainment

• an auditorium, convention center, lecture hall,
  or other place of public gathering,
• a bakery, grocery store, clothing store, hardware
  store, shopping or other sales or rental
  establishment

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Exempted from coverage under Title III of the ADA

• Private clubs
• Private homes
• Mixed use residential facilities
• Religious entities

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When a Private Club is a covered entity under
Title III

• To the extent that the facilities are made
  available to customers or patrons of a place of
  public accommodation.
• 42 U.S.C. 12187

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Overview of Requirements

• May not refuse to allow a person with a
  disability to participate in a program, service
  or activity
• Must provide services in an integrated setting,
  unless separate program is necessary to ensure
  equal opportunity
• Must eliminate eligibility criteria that screen
  out or tends to screen out persons with
  disabilities.

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Requirements

• Must make reasonable modifications in policies,
  practices and procedures to ensure equal access
• Must provide effective communication, and
  auxiliary aids and services when required to
  ensure effective communication.

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Examples of Auxiliary Aids and Services

• Qualified Interpreters
• Assistive Listening Devices
• Captioning
• TDD/TTY and Relay
• Alternative formats, i.e. taped text
• Brailled materials

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Additional Requirements

• Must not impose charges on individuals with
  disabilities to provide modifications
• May provide special benefits beyond those
  required by regulations
• Shall operate programs, when viewed in their
  entirety, to be readily accessible to and usable
  by persons with disabilities.

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Essential Eligibility Requirements

• Will depend on the type of service or activity
  involved an example
• Food Stamps must meet financial eligibility and
  other criteria
• Public postsecondary schools must meet the
  academic and technical requirements for admission
  or participation, with or without reasonable
  accommodations.

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Program Access

• Must ensure that individuals with disabilities
  are not excluded from services, programs and
  activities because of inaccessibility.

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Integrated Programs

• May not provide separate program unless necessary
  for effective services
• Even if separate program is permitted, person
  with a disability has the right to choose to
  participate in regular program
• May not require a person with a disability to
  accept a special accommodation if they choose not
  to.

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Physical Accessibility

• Existing facilities are those constructed for
  first occupancy prior to January 26, 1992.
• Must remove architectural barriers that are
  readily achievable
• Must provide program access where barrier removal
  is not readily achievable

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Examples of Alternative Methods

• Relocating a service to an accessible floor or
  facility
• Providing an aide or personal assistance to
  enable a person with a disability to obtain a
  service
• Provide the service at home

41
New Construction and Alterations

• Those facilities designed and constructed for
  first occupancy after January 26, 1992
• Those facilities or portions of facilities
  altered after January 26, 1992
• Must ensure buildings are free of architectural
  barriers, using either the Uniform Federal
  Accessibility Standards (UFAS) or the ADA
  Accessibility Guidelines (ADAAG).
• ADAAG and UFAS at www.access-board.gov

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Limits of Duty to Provide Access

• Public entities are not required to take any
  action that would result in an undue financial
  or administrative burden, or fundamentally
  alter the nature of the program, activity or
  service.
• Must take other necessary action to ensure equal
  access.

43
Enforcement

• File a complaint with the U.S. Department of
  Justice (DOJ) alleging violation of Title II or
  III of the ADA.
• Title II Complaint must be filed within 180 days
  of the date of the discrimination.
• Title III There is no deadline for filing this
  complaint, but we urge you to do so as soon as
  possible to preserve your rights.

44
Enforcement

• File a complaint with the Arizona District of
  the U.S. Attorneys Office, under Title III of
  the ADA, by calling [phone]. There is no
  deadline in which to file this complaint, but
  again, we urge you to do so as soon as possible
  to preserve your rights.

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Enforcement (Title III/AzDA)

• File a complaint of discrimination with the
  Arizona Attorney Generals Office, Civil Rights
  Division under the states Arizonans With
  Disabilities Act (AzDA), by calling
• [phone] or TDD [phone]
• in Phoenix, -or-
• [phone] or TDD [phone]
• in Tucson.
• Complaints must be filed within 180 days from
  the date of the discrimination.

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Enforcement

• Lawsuits
• Individuals can bring lawsuits to enforce their
  rights under Title II and III.
• Remedies include
• Injunctive relief
• Monetary damages (Ninth Circuit requires the
  discrimination to be intentional to obtain
  monetary relief)
• Reasonable attorneys fees to the prevailing
  Plaintiff.

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Not covered by Title II or III of the ADA but
covered by other civil rights/disability laws

• Airlines are covered by the federal Air Carriers
  Access Act however airports and terminals are
  covered by Title III.
• Housing covered by the Fair Housing Act.
• Telecommunications however Title IV of the ADA
  applies to common carriers that provide
  interstate wire or radio communications.

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Air Carriers Access Act

• The Air Carrier Access Act of 1986 (ACAA)
  prohibits discrimination on the basis of
  disability in air transportation (49 U.S.C.
  41705). Its implementing regulations are
  promulgated by the U.S. Department of
  Transportation are at 14 C.F.R. Part 382. The
  ACAA addresses issues including aircraft
  accessibility, airport facilities accessibility
  and requirements for services, as well as
  administrative provisions and compliance
  procedures.