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Learn the Business of I-28
Portlandsterdam University
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http://www.ada.gov/q%26aeng02.htm
U.S. Equal Employment Opportunity
Commission
U.S. Department of Justice
Civil Rights Division
Americans with Disabilities Act
Questions and Answers
Barriers to employment, transportation, public accommodations, public services,
and telecommunications have imposed staggering economic and social costs on
American society and have undermined our well-intentioned efforts to educate,
rehabilitate, and employ individuals with disabilities. By breaking down these
barriers, the Americans with Disabilities Act (ADA) will enable society to
benefit from the skills and talents of individuals with disabilities, will allow
us all to gain from their increased purchasing power and ability to use it, and
will lead to fuller, more productive lives for all Americans.
The Americans with Disabilities Act gives civil rights protections to
individuals with disabilities similar to those provided to individuals on the
basis of race, color, sex, national origin, age, and religion. It guarantees
equal opportunity for individuals with disabilities in public accommodations,
employment, transportation, State and local government services, and
telecommunications.
Fair, swift, and effective enforcement of this landmark civil rights legislation
is a high priority of the Federal Government. This booklet is designed to
provide answers to some of the most often asked questions about the ADA.
For answers to additional questions, call the ADA Information Line
800-514-0301 (voice)
800-514-0383 (TTY)
Additional ADA resources are listed in the Resources section of this document,
page 29.
May 2002
Employment
Q. What employers are covered by title I of the ADA, and when is the coverage
effective?
A. The title I employment provisions apply to private employers, State and
local governments, employment agencies, and labor unions. Employers with 25 or
more employees were covered as of July 26, 1992. Employers with 15 or more
employees were covered two years later, beginning July 26, 1994.
Q. What practices and activities are covered by the employment
nondiscrimination requirements?
A. The ADA prohibits discrimination in all employment practices, including
job application procedures, hiring, firing, advancement, compensation, training,
and other terms, conditions, and privileges of employment. It applies to
recruitment, advertising, tenure, layoff, leave, fringe benefits, and all other
employment-related activities.
Q. Who is protected from employment discrimination?
A. Employment discrimination is prohibited against "qualified individuals
with disabilities." This includes applicants for employment and employees. An
individual is considered to have a "disability" if s/he has a physical or mental
impairment that substantially limits one or more major life activities, has a
record of such an impairment, or is regarded as having such an impairment.
Persons discriminated against because they have a known association or
relationship with an individual with a disability also are protected.
The first part of the definition makes clear that the ADA applies to persons who
have impairments and that these must substantially limit major life activities
such as seeing, hearing, speaking, walking, breathing, performing manual tasks,
learning, caring for oneself, and working. An individual with epilepsy,
paralysis, HIV infection, AIDS, a substantial hearing or visual impairment,
mental retardation, or a specific learning disability is covered, but an
individual with a minor, nonchronic condition of short duration, such as a
sprain, broken limb, or the flu, generally would not be covered.
The second part of the definition protecting individuals with a record of a
disability would cover, for example, a person who has recovered from cancer or
mental illness.
The third part of the definition protects individuals who are regarded as having
a substantially limiting impairment, even though they may not have such an
impairment. For example, this provision would protect a qualified individual
with a severe facial disfigurement from being denied employment because an
employer feared the "negative reactions" of customers or co-workers.
Q. Who is a "qualified individual with a disability?"
A. A qualified individual with a disability is a person who meets legitimate
skill, experience, education, or other requirements of an employment position
that s/he holds or seeks, and who can perform the essential functions of the
position with or without reasonable accommodation. Requiring the ability to
perform "essential" functions assures that an individual with a disability will
not be considered unqualified simply because of inability to perform marginal or
incidental job functions. If the individual is qualified to perform essential
job functions except for limitations caused by a disability, the employer must
consider whether the individual could perform these functions with a reasonable
accommodation. If a written job description has been prepared in advance of
advertising or interviewing applicants for a job, this will be considered as
evidence, although not conclusive evidence, of the essential functions of the
job.
Q. Does an employer have to give preference to a qualified applicant with a
disability over other applicants?
A. No. An employer is free to select the most qualified applicant available
and to make decisions based on reasons unrelated to a disability. For example,
suppose two persons apply for a job as a typist and an essential function of the
job is to type 75 words per minute accurately. One applicant, an individual with
a disability, who is provided with a reasonable accommodation for a typing test,
types 50 words per minute; the other applicant who has no disability accurately
types 75 words per minute. The employer can hire the applicant with the higher
typing speed, if typing speed is needed for successful performance of the job.
Q. What limitations does the ADA impose on medical examinations and inquiries
about disability?
A. An employer may not ask or require a job applicant to take a medical
examination before making a job offer. It cannot make any pre-employment inquiry
about a disability or the nature or severity of a disability. An employer may,
however, ask questions about the ability to perform specific job functions and
may, with certain limitations, ask an individual with a disability to describe
or demonstrate how s/he would perform these functions.
An employer may condition a job offer on the satisfactory result of a post-offer
medical examination or medical inquiry if this is required of all entering
employees in the same job category. A post-offer examination or inquiry does not
have to be job-related and consistent with business necessity.
However, if an individual is not hired because a post-offer medical examination
or inquiry reveals a disability, the reason(s) for not hiring must be
job-related and consistent with business necessity. The employer also must show
that no reasonable accommodation was available that would enable the individual
to perform the essential job functions, or that accommodation would impose an
undue hardship. A post-offer medical examination may disqualify an individual if
the employer can demonstrate that the individual would pose a "direct threat" in
the workplace (i.e., a significant risk of substantial harm to the health or
safety of the individual or others) that cannot be eliminated or reduced below
the direct threat level through reasonable accommodation. Such a
disqualification is job-related and consistent with business necessity. A
post-offer medical examination may not disqualify an individual with a
disability who is currently able to perform essential job functions because of
speculation that the disability may cause a risk of future injury.
After a person starts work, a medical examination or inquiry of an employee must
be job-related and consistent with business necessity. Employers may conduct
employee medical examinations where there is evidence of a job performance or
safety problem, examinations required by other Federal laws, examinations to
determine current fitness to perform a particular job, and voluntary
examinations that are part of employee health programs.
Information from all medical examinations and inquiries must be kept apart from
general personnel files as a separate, confidential medical record, available
only under limited conditions.
Tests for illegal use of drugs are not medical examinations under the ADA and
are not subject to the restrictions of such examinations.
Q. When can an employer ask an applicant to "self-identify" as having a
disability?
A. Federal contractors and subcontractors who are covered by the affirmative
action requirements of section 503 of the Rehabilitation Act of 1973 may invite
individuals with disabilities to identify themselves on a job application form
or by other pre-employment inquiry, to satisfy the section 503 affirmative
action requirements. Employers who request such information must observe section
503 requirements regarding the manner in which such information is requested and
used, and the procedures for maintaining such information as a separate,
confidential record, apart from regular personnel records.
A pre-employment inquiry about a disability is allowed if required by another
Federal law or regulation such as those applicable to disabled veterans and
veterans of the Vietnam era. Pre-employment inquiries about disabilities may be
necessary under such laws to identify applicants or clients with disabilities in
order to provide them with required special services.
Q. Does the ADA require employers to develop written job descriptions?
A. No. The ADA does not require employers to develop or maintain job
descriptions. However, a written job description that is prepared before
advertising or interviewing applicants for a job will be considered as evidence
along with other relevant factors. If an employer uses job descriptions, they
should be reviewed to make sure they accurately reflect the actual functions of
a job. A job description will be most helpful if it focuses on the results or
outcome of a job function, not solely on the way it customarily is performed. A
reasonable accommodation may enable a person with a disability to accomplish a
job function in a manner that is different from the way an employee who is not
disabled may accomplish the same function.
Q. What is "reasonable accommodation?"
A. Reasonable accommodation is any modification or adjustment to a job or
the work environment that will enable a qualified applicant or employee with a
disability to participate in the application process or to perform essential job
functions. Reasonable accommodation also includes adjustments to assure that a
qualified individual with a disability has rights and privileges in employment
equal to those of employees without disabilities.
Q. What are some of the accommodations applicants and employees may need?
A. Examples of reasonable accommodation include making existing facilities
used by employees readily accessible to and usable by an individual with a
disability; restructuring a job; modifying work schedules; acquiring or
modifying equipment; providing qualified readers or interpreters; or
appropriately modifying examinations, training, or other programs. Reasonable
accommodation also may include reassigning a current employee to a vacant
position for which the individual is qualified, if the person is unable to do
the original job because of a disability even with an accommodation. However,
there is no obligation to find a position for an applicant who is not qualified
for the position sought. Employers are not required to lower quality or quantity
standards as an accommodation; nor are they obligated to provide personal use
items such as glasses or hearing aids.
The decision as to the appropriate accommodation must be based on the particular
facts of each case. In selecting the particular type of reasonable accommodation
to provide, the principal test is that o effectiveness, i.e., whether the
accommodation will provide an opportunity for a person with a disability to
achieve the same level of performance and to enjoy benefits equal to those of an
average, similarly situated person without a disability. However, the
accommodation does not have to ensure equal results or provide exactly the same
benefits.
Q. When is an employer required to make a reasonable accommodation?
A. An employer is only required to accommodate a "known" disability of a
qualified applicant or employee. The requirement generally will be triggered by
a request from an individual with a disability, who frequently will be able to
suggest an appropriate accommodation. Accommodations must be made on an
individual basis, because the nature and extent of a disabling condition and the
requirements of a job will vary in each case. If the individual does not request
an accommodation, the employer is not obligated to provide one except where an
individual's known disability impairs his/her ability to know of, or effectively
communicate a need for, an accommodation that is obvious to the employer. If a
person with a disability requests, but cannot suggest, an appropriate
accommodation, the employer and the individual should work together to identify
one. There are also many public and private resources that can provide
assistance without cost.
Q. What are the limitations on the obligation to make a reasonable
accommodation?
A. The individual with a disability requiring the accommodation must be
otherwise qualified, and the disability must be known to the employer. In
addition, an employer is not required to make an accommodation if it would
impose an "undue hardship" on the operation of the employer's business. "Undue
hardship" is defined as an "action requiring significant difficulty or expense"
when considered in light of a number of factors. These factors include the
nature and cost of the accommodation in relation to the size, resources, nature,
and structure of the employer's operation. Undue hardship is determined on a
case-by-case basis. Where the facility making the accommodation is part of a
larger entity, the structure and overall resources of the larger organization
would be considered, as well as the financial and administrative relationship of
the facility to the larger organization. In general, a larger employer with
greater resources would be expected to make accommodations requiring greater
effort or expense than would be required of a smaller employer with fewer
resources.
If a particular accommodation would be an undue hardship, the employer must try
to identify another accommodation that will not pose such a hardship. Also, if
the cost of an accommodation would impose an undue hardship on the employer, the
individual with a disability should be given the option of paying that portion
of the cost which would constitute an undue hardship or providing the
accommodation.
Q. Must an employer modify existing facilities to make them accessible?
A. The employer's obligation under title I is to provide access for an
individual applicant to participate in the job application process, and for
an individual employee with a disability to perform the essential
functions of his/her job, including access to a building, to the work site, to
needed equipment, and to all facilities used by employees. For example, if an
employee lounge is located in a place inaccessible to an employee using a
wheelchair, the lounge might be modified or relocated, or comparable facilities
might be provided in a location that would enable the individual to take a break
with co-workers. The employer must provide such access unless it would cause an
undue hardship.
Under title I, an employer s not required to make its existing facilities
accessible until a particular applicant or employee with a particular disability
needs an accommodation, and then the modifications should meet that individual's
work needs. However, employers should consider initiating changes that will
provide general accessibility, particularly for job applicants, since it is
likely that people with disabilities will be applying for jobs. The employer
does not have to make changes to provide access in places or facilities that
will not be used by that individual for employment-related activities or
benefits.
Q. Can an employer be required to reallocate an essential function of a job
to another employee as a reasonable accommodation?
A. No. An employer is not required to reallocate essential functions of a
job as a reasonable accommodation.
Q. Can an employer be required to modify, adjust, or make other reasonable
accommodations in the way a test is given to a qualified applicant or employee
with a disability?
A. Yes. Accommodations may be needed to assure that tests or examinations
measure the actual ability of an individual to perform job functions rather than
reflect limitations caused by the disability. Tests should be given to people
who have sensory, speaking, or manual impairments in a format that does not
require the use of the impaired skill, unless it is a job-related skill that the
test is designed to measure.
Q. Can an employer maintain existing production/performance standards for an
employee with a disability?
A. An employer can hold employees with disabilities to the same standards of
production/performance as other similarly situated employees without
disabilities for performing essential job functions, with or without reasonable
accommodation. An employer also can hold employees with disabilities to the same
standards of production/performance as other employees regarding marginal
functions unless the disability affects the person's ability to perform those
marginal functions. If the ability to perform marginal functions is affected by
the disability, the employer must provide some type of reasonable accommodation
such as job restructuring but may not exclude an individual with a disability
who is satisfactorily performing a jobs essential functions.
Q. Can an employer establish specific attendance and leave policies?
A. An employer can establish attendance and leave policies that are
uniformly applied to all employees, regardless of disability, but may not refuse
leave needed by an employee with a disability if other employees get such leave.
An employer also may be required to make adjustments in leave policy as a
reasonable accommodation. The employer is not obligated to provide additional
paid leave, but accommodations may include leave flexibility and unpaid leave.
A uniformly applied leave policy does not violate the ADA because it has a more
severe effect on an individual because of his/her disability. However, if an
individual with a disability requests a modification of such a policy as a
reasonable accommodation, an employer may be required to provide it, unless it
would impose an undue hardship.
Q. Can an employer consider health and safety when deciding whether to hire
an applicant or retain an employee with a disability?
A. Yes. The ADA permits employers to establish qualification standards that
will exclude individuals who pose a direct threat -- i.e., a significant risk of
substantial harm -- to the health or safety of the individual or of others, if
that risk cannot be eliminated or reduced below the level of a oedirect threatî
by reasonable accommodation. However, an employer may not simply assume that a
threat exists; the employer must establish through objective, medically
supportable methods that there is significant risk that substantial harm could
occur in the workplace. By requiring employers to make individualized judgments
based on reliable medical or other objective evidence rather than on
generalizations, ignorance, fear, patronizing attitudes, or stereotypes, the ADA
recognizes the need to balance the interests of people with disabilities against
the legitimate interests of employers in maintaining a safe workplace.
Q. Are applicants or employees who are currently illegally using drugs
covered by the ADA?
A. No. Individuals who currently engage in the illegal use of drugs are
specifically excluded from the definition of a "qualified individual with a
disability" protected by the ADA when the employer takes action on the basis of
their drug use.
Q. Is testing for the illegal use of drugs permissible under the ADA?
A. Yes. A test for the illegal use of drugs is not considered a medical
examination under the ADA; therefore, employers may conduct such testing of
applicants or employees and make employment decisions based on the results. The
ADA does not encourage, prohibit, or authorize drug tests.
If the results of a drug test reveal the presence of a lawfully prescribed drug
or other medical information, such information must be treated as a confidential
medical record.
Q. Are alcoholics covered by the ADA?
A. Yes. While a current illegal user of drugs is not protected by the ADA
if an employer acts on the basis of such use, a person who currently uses
alcohol is not automatically denied protection. An alcoholic is a person with a
disability and is protected by the ADA if s/he is qualified to perform the
essential functions of the job. An employer may be required to provide an
accommodation to an alcoholic. However, an employer can discipline, discharge or
deny employment to an alcoholic whose use of alcohol adversely affects job
performance or conduct. An employer also may prohibit the use of alcohol in the
workplace and can require that employees not be under the influence of alcohol.
Q. Does the ADA override Federal and State health and safety laws?
A. The ADA does not override health and safety requirements established
under other Federal laws even if a standard adversely affects the employment of
an individual with a disability. If a standard is required by another Federal
law, an employer must comply with it and does not have to show that the standard
is job related and consistent with business necessity. For example, employers
must conform to health and safety requirements of the U.S. Occupational Safety
and Health Administration. However, an employer still has the obligation under
the ADA to consider whether there is a reasonable accommodation, consistent with
the standards of other Federal laws, that will prevent exclusion of qualified
individuals with disabilities who can perform jobs without violating the
standards of those laws. If an employer can comply with both the ADA and another
Federal law, then the employer must do so.
The ADA does not override State or local laws designed to protect public health
and safety, except where such laws conflict with the ADA requirements. If there
is a State or local law that would exclude an individual with a disability from
a particular job or profession because of a health or safety risk, the employer
still must assess whether a particular individual would pose a "direct threat"
to health or safety under the ADA standard. If such a "direct threat" exists,
the employer must consider whether it could be eliminated or reduced below the
level of a "direct threat" by reasonable accommodation. An employer cannot rely
on a State or local law that conflicts with ADA requirements as a defense to a
charge of discrimination.
Q. How does the ADA affect workers' compensation programs?
A. Only injured workers who meet the ADA's definition of an "individual with
a disability" will be considered disabled under the ADA, regardless of whether
they satisfy criteria for receiving benefits under workers' compensation or
other disability laws. A worker also must be "qualified" (with or without
reasonable accommodation) to be protected by the ADA. Work-related injuries do
not always cause physical or mental impairments severe enough to "substantially
limit" a major life activity. Also, many on-the-job injuries cause temporary
impairments which heal within a short period of time with little or no long-term
or permanent impact. Therefore, many injured workers who qualify for benefits
under workers' compensation or other disability benefits laws may not be
protected by the ADA. An employer must consider work-related injuries on a
case-by-case basis to know if a worker is protected by the ADA.
An employer may not inquire into an applicant's workers' compensation history
before making a conditional offer of employment. After making a conditional job
offer, an employer may inquire about a person's workers compensation history in
a medical inquiry or examination that is required of all applicants in the same
job category. However, even after a conditional offer has been made, an employer
cannot require a potential employee to have a medical examination because a
response to a medical inquiry (as opposed to results from a medical examination)
shows a previous on-the-job injury unless all applicants in the same job
category are required to have an examination. Also, an employer may not base an
employment decision on the speculation that an applicant may cause increased
workers' compensation costs in the future. However, an employer may refuse to
hire, or may discharge an individual who is not currently able to perform a job
without posing a significant risk of substantial harm to the health or safety of
the individual or others, if the risk cannot be eliminated or reduced by
reasonable accommodation.
An employer may refuse to hire or may fire a person who knowingly provides a
false answer to a lawful post-offer inquiry about his/her condition or worker's
compensation history.
An employer also may submit medical information and records concerning employees
and applicants (obtained after a conditional job offer) to state workers'
compensation offices and "second injury" funds without violating ADA
confidentiality requirements.
Q. What is discrimination based on "relationship or association" under the
ADA?
A. The ADA prohibits discrimination based on relationship or association in
order to protect individuals from actions based on unfounded assumptions that
their relationship to a person with a disability would affect their job
performance, and from actions caused by bias or misinformation concerning
certain disabilities. For example, this provision would protect a person whose
spouse has a disability from being denied employment because of an employer's
unfounded assumption that the applicant would use excessive leave to care for
the spouse. It also would protect an individual who does volunteer work for
people with AIDS from a discriminatory employment action motivated by that
relationship or association.
Q. How are the employment provisions enforced?
A. The employment provisions of the ADA are enforced under the same
procedures now applicable to race, color, sex, national origin, and religious
discrimination under title VII of the Civil Rights Act of 1964, as amended, and
the Civil Rights Act of 1991. Complaints regarding actions that occurred on or
after July 26, 1992, may be filed with the Equal Employment Opportunity
Commission or designated State human rights agencies. Available remedies will
include hiring, reinstatement, promotion, back pay, front pay, restored
benefits, reasonable accommodation, attorneys' fees, expert witness fees, and
court costs. Compensatory and punitive damages also may be available in cases of
intentional discrimination or where an employer fails to make a good faith
effort to provide a reasonable accommodation.
Q. What financial assistance is available to employers to help them make
reasonable accommodations and comply with the ADA?
A. A special tax credit is available to help smaller employers make
accommodations required by the ADA. An eligible small business may take a tax
credit of up to $5,000 per year for accommodations made to comply with the ADA.
The credit is available for one-half the cost of "eligible access expenditures"
that are more than $250 but less than $10,250.
A full tax deduction, up to $15,000 per year, also is available to any business
for expenses of removing qualified architectural or transportation barriers.
Expenses covered include costs of removing barriers created by steps, narrow
doors, inaccessible parking spaces, restroom facilities, and
transportation vehicles. Additional information discussing the tax credits and
deductions is contained in the Department of Justice's ADA Tax Incentive Packet
for Businesses available from the ADA Information Line, see page 29. Information
about the tax credit and tax deduction can also be obtained from a local IRS
office, or by contacting the Office of Chief Counsel, Internal Revenue Service.
Q. What are an employer's recordkeeping requirements under the
employment provisions of the ADA?
A. An employer must maintain records such as application forms submitted by
applicants and other records related to hiring, requests for reasonable
accommodation, promotion, demotion, transfer, lay-off or termination, rates of
pay or other terms of compensation, and selection for training or apprenticeship
for one year after making the record or taking the action described (whichever
occurs later). If a charge of discrimination is filed or an action is brought by
EEOC, an employer must save all personnel records related to the charge until
final disposition of the charge.
Q. Does the ADA require that an employer post a notice explaining its
requirements?
A. The ADA requires that employers post a notice describing the provisions
of the ADA. It must be made accessible, as needed, to individuals with
disabilities. A poster is available from EEOC summarizing the requirements of
the ADA and other Federal legal requirements for nondiscrimination for which
EEOC has enforcement responsibility. EEOC also provides guidance on making this
information available in accessible formats for people with disabilities.
Q. What resources does the Equal Employment Opportunity Commission have
available to help employers and people with disabilities understand and comply
with the employment requirements of the ADA?
A. The Equal Employment Opportunity Commission has developed several
resources to help employers and people with disabilities understand and comply
with the employment provisions of the ADA.
Resources include:
A Technical Assistance Manual that provides "how-to" guidance on the
employment provisions of the ADA as well as a resource directory to help
individuals find specific information.
A variety of brochures, booklets, and fact sheets.
For information on how to contact the Equal Employment Opportunity
Commission,
see page 29.
State and Local Governments
Q. Does the ADA apply to State and local governments?
A. Title II of the ADA prohibits discrimination against qualified
individuals with disabilities in all programs, activities, and services of
public entities. It applies to all State and local governments, their
departments and agencies, and any other instrumentalities or special purpose
districts of State or local governments. It clarifies the requirements of
section 504 of the Rehabilitation Act of 1973 for public transportation systems
that receive Federal financial assistance, and extends coverage to all public
entities that provide public transportation, whether or not they receive Federal
financial assistance. It establishes detailed standards for the operation of
public transit systems, including commuter and intercity rail (AMTRAK).
Q. When do the requirements for State and local governments become effective?
A. In general, they became effective on January 26, 1992.
Q. How does title II affect participation in a State or local government's
programs, activities, and services?
A. A state or local government must eliminate any eligibility criteria for
participation in programs, activities, and services that screen out or tend to
screen out persons with disabilities, unless it can establish that the
requirements are necessary for the provision of the service, program, or
activity. The State or local government may, however, adopt legitimate safety
requirements necessary for safe operation if they are based on real risks, not
on stereotypes or generalizations about individuals with disabilities. Finally,
a public entity must reasonably modify its policies, practices, or procedures to
avoid discrimination. If the public entity can demonstrate that a particular
modification would fundamentally alter the nature of its service, program, or
activity, it is not required to make that modification.
Q. Does title II cover a public entity's employment policies and practices?
A. Yes. Title II prohibits all public entities, regardless of the size of
their work force, from discriminating in employment against qualified
individuals with disabilities. In addition to title II's employment coverage,
title I of the ADA and section 504 of the Rehabilitation Act of 1973 prohibit
employment discrimination against qualified individuals with disabilities by
certain public entities
Q. What changes must a public entity make to its existing facilities to make
them accessible?
A. A public entity must ensure that individuals with disabilities are not
excluded from services, programs, and activities because existing buildings are
inaccessible. A State or local government's programs, when viewed in their
entirety, must be readily accessible to and usable by individuals with
disabilities. This standard, known as "program accessibility," applies to
facilities of a public entity that existed on January 26, 1992. Public entities
do not necessarily have to make each of their existing facilities accessible.
They may provide program accessibility by a number of methods including
alteration of existing facilities, acquisition or construction of additional
facilities, relocation of a service or program to an accessible facility, or
provision of services at alternate accessible sites.
Q. When must structural changes be made to attain program accessibility?
A. Structural changes needed for program accessibility must be made as
expeditiously as possible, but no later than January 26, 1995. This three-year
time period is not a grace period; all alterations must be accomplished as
expeditiously as possible. A public entity that employs 50 or more persons must
have developed a transition plan by July 26, 1992, setting forth the steps
necessary to complete such changes.
Q. What is a self-evaluation?
A. A self-evaluation is a public entity's assessment of its current policies
and practices. The self-evaluation identifies and corrects those policies and
practices that are inconsistent with title II's requirements. All public
entities must complete a self-evaluation by January 26, 1993. A public entity
that employs 50 or more employees must retain its self-evaluation for three
years. Other public entities are not required to retain their self-evaluations,
but are encouraged to do so because these documents evidence a public entity's
good faith efforts to comply with title II's requirements.
Q. What does title II require for new construction and alterations?
A. The ADA requires that all new buildings constructed by a State or local
government be accessible. In addition, when a State or local government
undertakes alterations to a building, it must make the altered portions
accessible.
Q. How will a State or local government know that a new building is
accessible?
A. A State or local government will be in compliance with the ADA for new
construction and alterations if it follows either of two accessibility
standards. It can choose either the Uniform Federal Accessibility Standards or
the Americans with Disabilities Act Accessibility Guidelines for Buildings and
Facilities, which is the standard that must be used for public accommodations
and commercial facilities under title III of the ADA. If the State or local
government chooses the ADA Accessibility Guidelines, it is not entitled to the
elevator exemption (which permits certain private buildings under three stories
or under 3,000 square feet per floor to be constructed without an elevator).
Q. What requirements apply to a public entity's emergency telephone services,
such as 911?
A. State and local agencies that provide emergency telephone services must
provide "direct access" to individuals who rely on a TDD or computer modem for
telephone communication. Telephone access through a third party or through a
relay service does not satisfy the requirement for direct access. Where a public
entity provides 911 telephone service, it may not substitute a separate
seven-digit telephone line as the sole means for access to 911 services by
nonvoice users. A public entity may, however, provide a separate seven-digit
line for the exclusive use of nonvoice callers in addition to providing direct
access for such calls to its 911 line.
Q. Does title II require that telephone emergency service systems be
compatible with all formats used for nonvoice communications?
A. No. At present, telephone emergency services must only be compatible with
the Baudot format. Until it can be technically proven that communications in
another format can operate in a reliable and compatible manner in a given
telephone emergency environment, a public entity would not be required to
provide direct access to computer modems using formats other than Baudot.
Q. How will the ADA's requirements for State and local governments be
enforced?
A. Private individuals may bring lawsuits to enforce their rights under
title II and may receive the same remedies as those provided under section 504
of the Rehabilitation Act of 1973, including reasonable attorney's fees.
Individuals may also file complaints with eight designated Federal agencies,
including the Department of Justice and the Department of Transportation.
Public Accommodations
Q. What are public accommodations?
A. A public accommodation is a private entity that owns, operates, leases,
or leases to, a place of public accommodation. Places of public accommodation
include a wide range of entities, such as restaurants, hotels, theaters,
doctors' offices, pharmacies, retail stores, museums, libraries, parks, private
schools, and day care centers. Private clubs and religious organizations are
exempt from the ADA's title III requirements for public accommodations.
Q. Will the ADA have any effect on the eligibility criteria used by public
accommodations to determine who may receive services?
A. Yes. If a criterion screens out or tends to screen out individuals with
disabilities, it may only be used if necessary for the provision of the
services. For instance, it would be a violation for a retail store to have a
rule excluding all deaf persons from entering the premises, or for a movie
theater to exclude all individuals with cerebral palsy. More subtle forms of
discrimination are also prohibited. For example, requiring presentation of a
driver's license as the sole acceptable means of identification for purposes of
paying by check could constitute discrimination against individuals with vision
impairments. This would be true if such individuals are ineligible to receive
licenses and the use of an alternative means of identification is feasible.
Q. Does the ADA allow public accommodations to take safety factors into
consideration in providing services to individuals with disabilities?
A. The ADA expressly provides that a public accommodation may exclude an
individual, if that individual poses a direct threat to the health or safety of
others that cannot be mitigated by appropriate modifications in the public
accommodation's policies or procedures, or by the provision of auxiliary aids. A
public accommodation will be permitted to establish objective safety criteria
for the operation of its business; however, any safety standard must be based on
objective requirements rather than stereotypes or generalizations about the
ability of persons with disabilities to participate in an activity.
Q. Are there any limits on the kinds of modifications in policies, practices,
and procedures required by the ADA?
A. Yes. The ADA does not require modifications that would fundamentally
alter the nature of the services provided by the public accommodation. For
example, it would not be discriminatory for a physician specialist who treats
only burn patients to refer a deaf individual to another physician for treatment
of a broken limb or respiratory ailment. To require a physician to accept
patients outside of his or her specialty would fundamentally alter the nature of
the medical practice.
Q. What kinds of auxiliary aids and services are required by the ADA to
ensure effective communication with individuals with hearing or vision
impairments?
A. Appropriate auxiliary aids and services may include services and devices
such as qualified interpreters, assistive listening devices, notetakers, and
written materials for individuals with hearing impairments; and qualified
readers, taped texts, and Brailled or large print materials for individuals with
vision impairments.
Q. Are there any limitations on the ADA's auxiliary aids requirements?
A. Yes. The ADA does not require the provision of any auxiliary aid that
would result in an undue burden or in a fundamental alteration in the nature of
the goods or services provided by a public accommodation. However, the public
accommodation is not relieved from the duty to furnish an alternative auxiliary
aid, if available, that would not result in a fundamental alteration or undue
burden. Both of these limitations are derived from existing regulations and
caselaw under section 504 of the Rehabilitation Act and are to be determined on
a case-by-case basis.
Q. Will restaurants be required to have brailled menus?
A. No, not if waiters or other employees are made available to read the menu
to a blind customer.
Q. Will a clothing store be required to have brailled price tags?
A. No, not if sales personnel could provide price information orally upon
request.
Q. Will a bookstore be required to maintain a sign language interpreter on
its staff in order to communicate with deaf customers?
A. No, not if employees communicate by pen and notepad when necessary.
Q. Are there any limitations on the ADA's barrier removal requirements for
existing facilities?
A. Yes. Barrier removal need be accomplished only when it is "readily
achievable" to do so.
Q. What does the term "readily achievable" mean?
A. It means "easily accomplishable and able to be carried out without much
difficulty or expense."
Q. What are examples of the types of modifications that would be readily
achievable in most cases?
A. Examples include the simple ramping of a few steps, the installation of
grab bars where only routine reinforcement of the wall is required, the lowering
of telephones, and similar modest adjustments.
Q. Will businesses need to rearrange furniture and display racks?
A. Possibly. For example, restaurants may need to rearrange tables and
department stores may need to adjust their layout of racks and shelves in order
to permit access to wheelchair users.
Q. Will businesses need to install elevators?
A. Businesses are not required to retrofit their facilities to install
elevators unless such installation is readily achievable, which is unlikely in
most cases.
Q. When barrier removal is not readily achievable, what kinds of alternative
steps are required by the ADA?
A. Alternatives may include such measures as in-store assistance for
removing articles from inaccessible shelves, home delivery of groceries, or
coming to the door to receive or return dry cleaning.
Q. Must alternative steps be taken without regard to cost?
A. No, only readily achievable alternative steps must be undertaken.
Q. How is "readily achievable" determined in a multisite business?
A. In determining whether an action to make a public accommodation
accessible would be "readily achievable," the overall size of the parent
corporation or entity is only one factor to be considered. The ADA also permits
consideration of the financial resources of the particular facility or
facilities involved and the administrative or fiscal relationship of the
facility or facilities to the parent entity.
Q. Who has responsibility for ADA compliance in leased places of public
accommodation, the landlord or the tenant?
A. The ADA places the legal obligation to remove barriers or provide
auxiliary aids and services on both the landlord and the tenant. The landlord
and the tenant may decide by lease who will actually make the changes and
provide the aids and services, but both remain legally responsible.
Q. What does the ADA require in new construction?
A. The ADA requires that all new construction of places of public
accommodation, as well as of "commercial facilities" such as office buildings,
be accessible. Elevators are generally not required in facilities under three
stories or with fewer than 3,000 square feet per floor, unless the building is a
shopping center or mall; the professional office of a health care provider; a
terminal, depot, or other public transit station; or an airport passenger
terminal.
Q. Is it expensive to make all newly constructed places of public
accommodation and commercial facilities accessible?
A. The cost of incorporating accessibility features in new construction is
less than one percent of construction costs. This is a small price in relation
to the economic benefits to be derived from full accessibility in the future,
such as increased employment and consumer spending and decreased welfare
dependency.
Q. Must every feature of a new facility be accessible?
A. No, only a specified number of elements such as parking spaces and
drinking fountains must be made accessible in order for a facility to be
"readily accessible." Certain nonoccupiable spaces such as elevator pits,
elevator penthouses, and piping or equipment catwalks need not be accessible.
Q. What are the ADA requirements for altering facilities?
A. All alterations that could affect the usability of a facility must be
made in an accessible manner to the maximum extent feasible. For example, if
during renovations a doorway is being relocated, the new doorway must be wide
enough to meet the new construction standard for accessibility. When alterations
are made to a primary function area, such as the lobby of a bank or the dining
area of a cafeteria, an accessible path of travel to the altered area must also
be provided. The bathrooms, telephones, and drinking fountains serving that area
must also be made accessible. These additional accessibility alterations are
only required to the extent that the added accessibility costs do not exceed 20%
of the cost of the original alteration. Elevators are generally not required in
facilities under three stories or with fewer than 3,000 square feet per floor,
unless the building is a shopping center or mall; the professional office of a
health care provider; a terminal, depot, or other public transit station; or an
airport passenger terminal.
Q. Does the ADA permit an individual with a disability to sue a business when
that individual believes that discrimination is about to occur, or must the
individual wait for the discrimination to occur?
A. The ADA public accommodations provisions permit an individual to allege
discrimination based on a reasonable belief that discrimination is about to
occur. This provision, for example, allows a person who uses a wheelchair to
challenge the planned construction of a new place of public accommodation, such
as a shopping mall, that would not be accessible to individuals who use
wheelchairs. The resolution of such challenges prior to the construction of an
inaccessible facility would enable any necessary remedial measures to be
incorporated in the building at the planning stage, when such changes would be
relatively inexpensive.
Q. How does the ADA affect existing State and local building codes?
A. Existing codes remain in effect. The ADA allows the Attorney General to
certify that a State law, local building code, or similar ordinance that
establishes accessibility requirements meets or exceeds the minimum
accessibility requirements for public accommodations and commercial facilities.
Any State or local government may apply for certification of its code or
ordinance. The Attorney General can certify a code or ordinance only after prior
notice and a public hearing at which interested people, including individuals
with disabilities, are provided an opportunity to testify against the
certification.
Q. What is the effect of certification of a State or local code or ordinance?
A. Certification can be advantageous if an entity has constructed or altered
a facility according to a certified code or ordinance. If someone later brings
an enforcement proceeding against the entity, the certification is considered
"rebuttable evidence" that the State law or local ordinance meets or exceeds the
minimum requirements of the ADA. In other words, the entity can argue that the
construction or alteration met the requirements of the ADA because it was done
in compliance with the State or local code that had been certified.
Q. When are the public accommodations provisions effective?
A. In general, they became effective on January 26, 1992.
Q. How will the public accommodations provisions be enforced?
A. Private individuals may bring lawsuits in which they can obtain court
orders to stop discrimination. Individuals may also file complaints with the
Attorney General, who is authorized to bring lawsuits in cases of general public
importance or where a oepattern o practiceî of discrimination is alleged. In
these cases, the Attorney General may seek monetary damages and civil penalties.
Civil penalties may not exceed $55,000 for a first violation or $110,000 for any
subsequent violation.
Miscellaneous
Q. Is the Federal government covered by the ADA?
A. The ADA does not cover the executive branch of the Federal government.
The executive branch continues to be covered by title V of the Rehabilitation
Act of 1973, which prohibits discrimination in services and employment on the
basis of handicap and which is a model for the requirements of the ADA. The ADA,
however, does cover Congress and other entities in the legislative branch of the
Federal government.
Q. Does the ADA cover private apartments and private homes?
A. The ADA does not cover strictly residential private apartments and homes.
If, however, a place of public accommodation, such as a doctor's office or day
care center, is located in a private residence, those portions of the residence
used for that purpose are subject to the ADA's requirements.
Q. Does the ADA cover air transportation?
A. Discrimination by air carriers in areas other than employment is not
covered by the ADA but rather by the Air Carrier Access Act (49 U.S.C. 1374
(c)).
Q. What are the ADA's requirements for public transit buses?
A. The Department of Transportation has issued regulations mandating
accessible public transit vehicles and facilities. The regulations include
requirements that all new fixed-route, public transit buses be accessible and
that supplementary paratransit services be provided for those individuals with
disabilities who cannot use fixed-route bus service. For information on how to
contact the Department of Transportation, see page 29.
Q. How will the ADA make telecommunications accessible?
A. The ADA requires the establishment of telephone relay services for
individuals who use telecommunications devices for deaf persons (TDD's) or
similar devices. The Federal Communications Commission has issued regulations
specifying standards for the operation of these services.
Q. Are businesses entitled to any tax benefit to help pay for the cost of
compliance?
A. As amended in 1990, the Internal Revenue Code allows a deduction of up to
$15,000 per year for expenses associated with the removal of qualified
architectural and transportation barriers. The 1990 amendment also permits
eligible small businesses to receive a tax credit for certain costs of
compliance with the ADA. An eligible small business is one whose gross receipts
do not exceed $1,000,000 or whose workforce does not consist of more than 30
full-time workers. Qualifying businesses may claim a credit of up to 50 percent
of eligible access expenditures that exceed $250 but do not exceed $10,250.
Examples of eligible access expenditures include the necessary and reasonable
costs of removing architectural, physical, communications, and transportation
barriers; providing readers, interpreters, and other auxiliary aids; and
acquiring or modifying equipment or devices.
Telephone Numbers for ADA Information
This list contains the telephone numbers of Federal agencies that are
responsible for providing information to the public about the Americans with
Disabilities Act and organizations that have been funded by the Federal
government to provide information through staffed information centers. The
agencies and organizations listed are sources for obtaining information about
the law's requirements and informal guidance in understanding and complying with
the ADA.
ADA Information Line
U.S. Department of Justice
For ADA publications and questions
800-514-0301 (voice)
800-514-0383 (TTY)
www.ada.gov or
ada.gov
U.S. Equal Employment Opportunity Commission
For publications
800-669-3362 (voice)
800-800-3302 (TTY)
For questions
800-669-4000 (voice)
800-669-6820 (TTY)
www.eeoc.gov
U.S. Department of Transportation
ADA Assistance Line for
regulations and complaints
888-446-4511 (voice)
TTY: use relay service
www.fta.dot.gov/civilrights/civil_rights_2360.html
Federal Communications Commission
888-225-5322 (voice)
888-835-5322 (TTY)
www.fcc.gov/cgb/dro
U.S. Architectural and Transportation Barriers Compliance Board
800-872-2253 (voice)
800-993-2822 (TTY)
www.access-board.gov
U.S. Department of Labor
Job Accommodation Network
800-526-7234 (voice & TTY)
www.jan.wvu.edu
U.S. Department of Education
Regional Disability and Business Technical Assistance Centers
800-949-4232 (voice & TTY)
www.adata.org
U.S. Department of Transportaion
Project Action
800-659-6428 (voice)
TTY: use relay service
www.projectaction.org
Addresses for ADA Information
U.S. Department of Justice
Civil Rights Division
950 Pennsylvania Avenue, NW
Disability Rights Section - NYAV
Washington, DC 20530
U.S. Equal Employment Opportunity Commission
1801 L Street, NW
Washington, DC 20507
U.S. Department of Transportation
Federal Transit Administration
400 Seventh Street, SW
Washington, DC 20590
Federal Communications Commission
1919 M Street, NW
Washington, DC 20554
Architectural and Transportation Barriers Compliance Board
1331 F Street, NW Suite 1000
Washington, DC 20004-1111
This document is available in the following alternate formats for people with
disabilities:
- Braille
- Large print
- Audiocassette
- Electronic file on computer disk.
Note: Reproduction of this document is encouraged.
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