Americans with Disabilities Act of 1990

Legislation

By: Tony Coelho

Date: July 26,1990

Source: The United States Equal Employment Opportunity Commission. "The Americans with Disabilities Act of 1990, Titles I and V."

About the Author: Although the Americans with Disabilities Act of 1990 was legislated through Congress, the principal author is cited as former Congressman Tony Coelho (b. 1942), who was the Chairman of the President's Committee for the Employment of People with Disabilities at the time that the legislation was written. Coelho was also the former Chairman of the Presidential Election Campaign of Al Gore. He experienced epilepsy as a youth and reported that he was impacted when his medical disability was used as a means of denying him employment.

INTRODUCTION

The Americans with Disabilities Act (ADA) of 1990, the full title of which is United States Public Law 101-336, 104 Statute 327 (July 26, 1990), codified at 42 U.S.C. § 12101 et seq. was executed into law by former President George H. W. Bush. It broadens the reach of the Civil Rights Act of 1964 by prohibiting discrimination based upon individual disability—in addition to the prohibitions against discrimination based on gender, race, religion, cultural or national origin already imposed by the Civil Rights Act. The ADA consists of three introductory sections: Table of Contents, Findings and Purposes, and Definitions, followed by a main section containing five Titles, each of which applies to a specific area or type of activity: Title I refers to Employment; Title II refers to Public Services and Public Transportation; Title III is related to Public Accommodations and Commercial Facilities; Title IV refers to Telecommunications; and Title V covers Miscellaneous Provisions.

The primary objective of the Americans With Disabilities Act of 1990 is to prevent labor unions, employers, employment agencies, and local, city, or state government entities from acting with bias against appropriately qualified disabled individuals in all aspects of employment, from the application process through hiring, job training, and compensation (to name just a few). The ADA defines a person with a disability as one who either has "a physical or mental impairment that substantially limits one or more major life activities; has a record of such impairment; or is regarded as having such an impairment."

A "qualified employee" is an individual who is capable of fulfilling the primary functions of a specific job, either with or without reasonable accommodations. "Reasonable accommodations" may range from modifying existing facilities or structures so as to render them accessible and functional for persons with disabilities; to changing the nature or responsibilities of a position, altering the assigned work hours, or reassigning the individual to a more suitable position; to acquiring assistive devices, modifying furniture or equipment; restructuring testing and examination conditions, curricula, training materials, policies, or procedures, or providing credentialed or fully qualified assistants, interpreters, or readers, according to the text and provisions of the Americans With Disabilities Act of 1990.

So long as making the reasonable accommodation(s) would not pose an undue financial hardship on the running of a business, the employer must make reasonable accommodations for a qualified applicant or current employee.

PRIMARY SOURCE

SEC. 2. FINDINGS AND PURPOSES.

1. Findings.—The Congress finds that—
   1. some 43,000,000 Americans have one or more physical or mental disabilities, and this number is increasing as the population as a whole is growing older;
   2. historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem;
   3. discrimination against individuals with disabilities persists in such critical areas as employment, housing, public accommodations, education, transportation, communication, recreation, institutionalization, health services, voting, and access to public services;
   4. unlike individuals who have experienced discrimination on the basis of race, color, sex, national origin, religion, or age, individuals who have experienced discrimination on the basis of disability have often had no legal recourse to redress such discrimination;
   5. individuals with disabilities continually encounter various forms of discrimination, including outright intentional exclusion, the discriminatory effects of architectural, transportation, and communication barriers, overprotective rules and policies, failure to make modifications to existing facilities and practices, exclusionary qualification standards and criteria, segregation, and relegation to lesser services, programs, activities, benefits, jobs, or other opportunities;
   6. census data, national polls, and other studies have documented that people with disabilities, as a group, occupy an inferior status in our society, and are severely disadvantaged socially, vocationally, economically, and educationally;
   7. individuals with disabilities are a discrete and insular minority who have been faced with restrictions and limitations, subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness in our society, based on characteristics that are beyond the control of such individuals and resulting from stereotypic assumptions not truly indicative of the individual ability of such individuals to participate in, and contribute to, society;
   8. the Nation's proper goals regarding individuals with disabilities are to assure equality of opportunity, full participation, independent living, and economic self-sufficiency for such individuals; and
   9. the continuing existence of unfair and unnecessary discrimination and prejudice denies people with disabilities the opportunity to compete on an equal basis and to pursue those opportunities for which our free society is justifiably famous, and costs the United States billions of dollars in unnecessary expenses resulting from dependency and nonproductivity.
2. Purpose.—It is the purpose of this Act—
   1. to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities;
   2. to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities;
   3. to ensure that the Federal Government plays a central role in enforcing the standards established in this Act on behalf of individuals with disabilities; and
   4. to invoke the sweep of congressional authority, including the power to enforce the fourteenth amendment and to regulate commerce, in order to address the major areas of discrimination faced day-to-day by people with disabilities.

SEC. 102. DISCRIMINATION.

1. General Rule.—No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual 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.
2. Construction.—As used in subsection (a), the term "discriminate" includes—
   1. limiting, segregating, or classifying a job applicant or employee in a way that adversely affects the opportunities or status of such applicant or employee because of the disability of such applicant or employee;
   2. participating in a contractual or other arrangement or relationship that has the effect of subjecting a covered entity's qualified applicant or employee with a disability to the discrimination prohibited by this title (such relationship includes a relationship with an employment or referral agency, labor union, an organization providing fringe benefits to an employee of the covered entity, or an organization providing training and apprenticeship programs);
   3. utilizing standards, criteria, or methods of administration—
      1. that have the effect of discrimination on the basis of disability; or
      2. that perpetuate the discrimination of others who are subject to common administrative control;
   4. excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association;
   5. (A)not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity; or (B) denying employment opportunities to a job applicant or employee who is an otherwise qualified individual with a disability, if such denial is based on the need of such covered entity to make reasonable accommodation to the physical or mental impairments of the employee or applicant;
   6. using qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities unless the standard, test or other selection criteria, as used by the covered entity, is shown to be job-related for the position in question and is consistent with business necessity; and
   7. failing to select and administer tests concerning employment in the most effective manner to ensure that, when such test is administered to a job applicant or employee who has a disability that impairs sensory, manual, or speaking skills, such test results accurately reflect the skills, aptitude, or whatever other factor of such applicant or employee that such test purports to measure, rather than reflecting the impaired sensory, manual, or speaking skills of such employee or applicant (except where such skills are the factors that the test purports to measure).
3. Medical Examinations and Inquiries.—
   1. In general.—The prohibition against discrimination as referred to in subsection (a) shall include medical examinations and inquiries.
   2. Preemployment—
      1. Prohibited examination or inquiry.—Except as provided in paragraph (3), a covered entity shall not conduct a medical examination or make inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability.
      2. Acceptable inquiry.—A covered entity may make preemployment inquiries into the ability of an applicant to perform job-related functions.
   3. Employment entrance examination.—A covered entity may require a medical examination after an offer of employment has been made to a job applicant and prior to the commencement of the employment duties of such applicant, and may condition an offer of employment on the results of such examination, if—
      1. all entering employees are subjected to such an examination regardless of disability;
      2. information obtained regarding the medical condition or history of the applicant is collected and maintained on separate forms and in separate medical files and is treated as a confidential medical record, except that—
         1. supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodations;
         2. first aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment; and
         3. government officials investigating compliance with this Act shall be provided relevant information on request; and
      3. the results of such examination are used only in accordance with this title.
   4. Examination and inquiry.—
      1. Prohibited examinations and inquiries.—A covered entity shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.
      2. Acceptable examinations and inquiries.—A covered entity may conduct voluntary medical examinations, including voluntary medical histories, which are part of an employee health program available to employees at that work site. A covered entity may make inquiries into the ability of an employee to perform job-related functions.
      3. Requirement.—Information obtained under subpara-graph (B) regarding the medical condition or history of any employee are subject to the requirements of subpara-graphs (B) and (C) of paragraph (3).

SEC. 103. DEFENSES.

1. In General.—It may be a defense to a charge of discrimination under this Act that an alleged application of qualification standards, tests, or selection criteria that screen out or tend to screen out or otherwise deny a job or benefit to an individual with a disability has been shown to be job-related and consistent with business necessity, and such performance cannot be accomplished by reasonable accommodation, as required under this title.
2. Qualification Standards.—The term "qualification standards" may include a requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace.
3. Religious Entities.—
   1. In general.—This title shall not prohibit a religious corporation, association, educational institution, or society from giving preference in employment to individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.
   2. Religious tenets requirement.—Under this title, a religious organization may require that all applicants and employees conform to the religious tenets of such organization.
4. List of Infectious and Communicable Diseases.—
   1. In general.—The Secretary of Health and Human Services, not later than 6 months after the date of enactment of this Act, shall—
      1. review all infectious and communicable diseases which may be transmitted through handling the food supply;
      2. publish a list of infectious and communicable diseases which are transmitted through handling the food supply;
      3. publish the methods by which such diseases are transmitted; and
      4. widely disseminate such information regarding the list of diseases and their modes of transmissability to the general public. Such list shall be updated annually.
   2. Applications.—In any case in which an individual has an infectious or communicable disease that is transmitted to others through the handling of food, that is included on the list developed by the Secretary of Health and Human Services under paragraph (1), and which cannot be eliminated by reasonable accommodation, a covered entity may refuse to assign or continue to assign such individual to a job involving food handling.
   3. Construction.—Nothing in this Act shall be construed to preempt, modify, or amend any State, county, or local law, ordinance, or regulation applicable to food handling which is designed to protect the public health from individuals who pose a significant risk to the health or safety of others, which cannot be eliminated by reasonable accommodation, pursuant to the list of infectious or communicable diseases and the modes of transmissability published by the Secretary of Health and Human Services.

SEC. 309. EXAMINATIONS AND COURSES.

Any person that offers examinations or courses related to applications, licensing, certification, or credentialing for secondary or postsecondary education, professional, or trade purposes shall offer such examinations or courses in a place and manner accessible to persons with disabilities or offer alternative accessible arrangements for such individuals.

SEC. 502. STATE IMMUNITY.

A State shall not be immune under the eleventh amendment to the Constitution of the United States from an action in Federal or State court of competent jurisdiction for a violation of this Act. In any action against a State for a violation of the requirements of this Act, remedies (including remedies both at law and in equity) are available for such a violation to the same extent as such remedies are available for such a violation in an action against any public or private entity other than a State.

SIGNIFICANCE

Under Title I of the ADA, employers who have fifteen or more employees are prohibited from discriminating against qualified individuals who have disabilities.They are mandated to make reasonable accommodations for qualified disabled employees or job applicants, unless doing so would pose an undue or untenable financial hardship for the employer. Employers retain the right to reject any applicant, or to dismiss any current employee who poses a clear and present danger, or a threat to the safety, health, or well-being of the other employees. The utilization of drug screening, and the right to discharge employees or to reject applicants who are found to use illegal substances, is not in any way waived by the ADA. In addition to prohibiting discrimination against an individual with a known disability, the ADA prohibits discrimination against persons (employees or applicants) who have a close relationship or personal association with an individual who is known to have a disability. Allegations of failure to adhere to the requirements of the ADA are filed with the Equal Employment Opportunity Commission (EEOC).

Public accommodations—which according to the ADA include "restaurants, hotels, theaters, doctor's offices, pharmacies, libraries, retail stores, museums, libraries, parks, private schools, and day care centers"—may not discriminate against an individual based on known disability. Reasonable efforts must be made to ensure accessibility and to avoid discrimination, by offering such auxiliary services as might be necessary to persons who are blind or visually impaired, deaf, or hearing impaired; removing impediments and physical barriers in existing structures, or modifying those that cannot be removed in such a way as to create accessibility or, alternatively, creating equivalent means of providing the same goods or services wherever and whenever it is reasonably possible to do so. All new construction of public facilities must meet accessibility requirements. When a structure or facility is altered, even temporarily, those alterations must contain an accessible pathway whenever and wherever financially or practically possible. When discrimination is experienced in an area of public accommodation and redress is not made readily available, an individual can choose to initiate a private legal action against the discriminatory entity. However, there can be no financial gain from such lawsuits. Alternatively, the individual may exercise the option of filing a formal complaint with the Office of the Attorney General. If a successful lawsuit results from such a complaint, the complainant may receive monetary damages or financial compensation as a result.

Private and public transportation systems such as public buses, public rail and subway systems, and privately owned vans and buses may also not act in a discriminatory fashion toward individuals with known disabilities. All newly built public buses must be accessible; in the case of older buses that are not possible to modify, the bus company must provide an accessible alternate form of transportation covering the same route so long as doing so is not financially prohibitive. Newly constructed bus stations must be accessible, and older stations must be modified or altered so as to make them as fully accessible as is financially feasible. Privately owned van, bus, and other transportation systems must conform to the same requirements for accessibility as those mandated for public systems, stations, and facilities.

New rail vehicles must conform to rules of accessibility, and each existing train must contain at least one accessible car. New train stations must be constructed so as to be accessible, and existing stations must be modified or altered so as to ensure the greatest degree of accessibility that is not cost prohibitive.

State and local government facilities, services, communications, and systems must be made accessible for persons with disabilities.

Communications and telephone service providers must offer telephone relay services to individuals who use TDD's (telecommunications devices for the deaf) or other similar systems.

The ADA is an extremely important piece of legislation and one that has a very broad reach: there is virtually no aspect of life that is not impacted for people who experience disabilities, and their ability to move comfortably and adequately in society has been severely curtailed by lack of accessibility and reasonable accommodations prior to the passage of the Act. With the ADA, persons who have disabilities are able to be much more a part of mainstream society, and their civil rights are both enforced and protected.

FURTHER RESOURCES

Books

Marshak, Laura E., Milton Seligman, and Fran Prezant. Disability and the Family Life Cycle. New York: Basic Books, 1999.

Veres III, John G., ed., and Ronald R. Sims, ed. Human Resource Management and the Americans with Disabilities Act. Westport, Conn.: Quorum Books, 1995.

Westerfield, Donald R. National Health Care: Law, Policy, Strategy. Westport, Conn.: Praeger, 1993.

Periodicals

Callahan, T. J. "Managers' Beliefs and Attitudes Toward the Americans with Disabilities Act of 1990." Applied Human Resource Management research5 (1994): 28–43.

Hernandez, Brigida, Christopher Keys, and Fabricio Balcazar. "Employer Attitudes Toward Workers with Disabilities and Their ADA Employment Rights: A Literature Review." Journal of Rehabilitation66 (2000): 4–16.

Pierce, P.A. "The Americans with Disabilities Act of 1990: A Symposium." The Journal of Intergroup Relations17 (1991): 17, 34.

Thornburgh, Richard. "The Americans with Disabilities Act: What It Means to All Americans." The Journal of Intergroup Relations17 (1991): 35–41.