Disability and the Americans with Disabilities Act

The Americans with Disabilities Act was passed in 1990 to protect the civil rights of people with disabilities. Just as previous laws had made it illegalto discriminate against people on the basis of their gender, race or religion, the ADA made it illegal to discriminate against people with disabilities, whether physical or mental. It was signed into law by President George Bush onJuly 26, 1990. An estimated 43 million Americans are covered by the law, which applies to businesses that employ 15 or more people. Some industries estimate the number of people with disabilities is as high as 54 million.

The ADA protects people who have disabilities from discrimination in employment and in access to such public places as shopping malls, theaters, restaurants, doctors' offices, and pharmacies or to such public services as public transportation and telecommunications.

The act defines a disability as a physical or mental impairment that "substantially limits" one or more major life activities, such as walking, seeing, learning, speaking, hearing, breathing, taking care of oneself, performing manual tasks, or working. Examples of impairments that would constitute disabilities are blindness, paralysis, AIDS, or a learning disability. A temporary condition, such as a broken arm, would not be considered a disability under thelaw, nor would the use of illegal drugs. However, a person who has recoveredfrom cancer would be protected as a person with a record of a disability, andin some cases, alcoholics would also be protected under the ADA. However, the definition of "disability" under the ADA is being refined almost daily as new cases crop up.

Under this law, an employer cannot ask a job applicant if he or she has any physical or mental impairments. The ADA does not require the employer to hirean applicant simply because the applicant is disabled; rather, it means thatif a disabled applicant is as qualified as a nondisabled applicant and can fulfill the requirements of the job, the employer may not refuse to hire the applicant because of his or her disability. For example, two people apply for ajob in a pharmacy as a pharmacy technician. One applicant uses a wheelchair.If both applicants have sufficient training and experience to do the job, they both must be considered. However, if the applicant in the wheelchair has no experience as a pharmacy technician while the other applicant has three years' experience, the pharmacy can hire the other applicant without fear of being accused of discrimination.

A long-standing excuse for not hiring people in wheelchairs or with other disabilities was that they would not, for instance, be able to get up and down stairs. However, the ADA requires that employers with 15 or more employees make "reasonable accommodations" for employees with disabilities. A "reasonableaccommodation" might mean building a ramp so an employee in a wheelchair canget up the two steps into the building, or purchasing a blind employee a Braille keyboard for his computer. There are several caveats: the disability mustbe known to the employer (generally, by having been brought up by the employee), and the employee must ask for a reasonable accommodation. In many caseswhere an employee does request an accommodation, he or she often has a suggestion for fulfilling that need. Employers are not required to lower performance standards (of quality of work expected or quantity of output expected) as an accommodation. Nor must they provide a personal item such as a hearing aid,or make an accommodation that would create an undue hardship for the business-for example, installing an elevator at an employee's request when doing sowould financially strap the company. In such a case, however, the employer isexpected to make an effort to find another option, or give the disabled employee the option of paying the part of the cost of the accommodation that thecompany says is an undue hardship.

Besides ensuring the rights of disabled persons in the workplace, the ADA also protects their rights in the enjoyment of public facilities. For example, shopping malls are required to provide a sufficient number of handicapped-onlyparking spaces. Restaurants must have tables that are positioned in such a way that a person in a wheelchair can sit at them. Public telephones must be lowered so that a person in a wheelchair can use them as well.

In addition, state and local governments are also subject to the standards ofthe ADA, and may not discriminate against disabled persons. This includes public transportation systems whether or not they receive federal funding. Buses, streetcars and subway cars must be accessible to persons in wheelchairs, for example, either from raised platforms or by being equipped with wheelchairlifts.

New construction of public buildings, whether for government offices or for such public areas as a shopping mall, must also be handicapped accessible, with elevators, ramps, and doorways sufficiently large for the passage of a wheelchair.

In a series of three decisions in June 1999, the United States Supreme Courtlimited the way the Americans with Disabilities Act can be applied. Prior tothe June 1999 decisions, the Equal Employment Opportunity Commission (EEOC),the federal office that enforces the ADA, held that people claiming disability under the law had to be evaluated on their condition without corrective measures. For example, an individual whose hearing could be corrected to normalrange with a hearing aid could still claim disability based on impaired hearing without the hearing aid. The Supreme Court said the ADA was only intendedto cover individuals who were restricted from a major life activity after their condition was treated. In her majority opinion, Justice Sandra Day O'Connor pointed out that limiting the application of the ADA to people whose disabilities cannot be corrected is in line with the estimated population of 43 million disabled. If the ADA had been intended to cover people with correctabledisabilities, reasoned the court, as many as 160 million people might be affected.

Statistical analysis by observers in the legal community shows that people who file employment discrimination cases under ADA lose 93 percent of the time.When cases are appealed, the plaintiff loses 84 percent of the time. Now that the Supreme Court has applied a limited interpretation of the law, it willbe even harder for plaintiffs to win. Under the 1999 interpretation of ADA, aplaintiff must show that he has a condition that interferes with a major life activity but that when the condition is corrected, he is qualified to holdthe job in question. Disability advocates point out an underlying paradox: aperson with a correctable disability cannot be defined as disabled and cannotseek remedy under ADA. However, such a person might still be denied employment based on the disability. For example, an applicant for the job of pilot might have vision corrected to 20/20 with eyeglasses, but a commercial airlinemight impose its own higher standard of uncorrected visual acuity. As long asthe same job-related standard is required of every applicant, it is legal.

The American Diabetes Association has expressed concern over the Supreme Court's 1999 interpretation of ADA, claiming that it unfairly limits diabetics who are trying to keep their condition under control with medication. If a diabetic does not attempt a medical remedy of the condition, the ADA does not apply, since in most instances, diabetes can be improved with medical intervention. However, if a diabetic's condition is successfully controlled with medication and the individual is not restricted from a major life activity, then the individual also loses the protection of the ADA. Complications of diabetes,such as diabetic retinopathy (a disease of the retina of the eye) or diabetic neuropathy (diseased nerves) can in themselves affect a person's ability towork. It is left to the court system to evaluate these situations on a case-by-case basis. A diabetic employee might seek an individualized break schedule in order to check blood sugar, take insulin, or eat, and this might fall under the category of a "reasonable accommodation" on the part of the employer.In its evaluation of the Americans with Disabilities Act, the American Diabetes Association advises its members to look at both federal and state laws, as many states have disability discrimination laws that are more comprehensivethan federal law.

The EEOC reports that about 13 percent of ADA cases are brought by individuals suffering from emotional or psychiatric impairment. Such impairment would include anxiety disorders, depression, bipolar disorder (manic depression), and schizophrenia. Under the ADA, a worker would be protected if the mental impairment restricted him from a major life activity or if he had a history of mental impairment. A person with a self-limiting problem such as temporary moodiness after breaking up with a boyfriend would not be covered under ADA.

Mental impairment under ADA does not cover people who misuse prescription drugs or illegal drugs. The ADA does not cover bisexuality, homosexuality, sexual behavior disorders, compulsive gambling, kleptomania (compulsive theft), orpyromania (compulsive setting of fires).

Workers with mental impairment may request reasonable accommodations such aspartitions to give a more secluded work station to a worker who has trouble concentrating. Reasonable accommodations vary from case to case but could include a modified work schedule to allow a worker to keep counseling appointments. If a mentally impaired worker makes threats, destroys property or steals,the employer is free to use the same disciplinary measures that would apply to any other employee. Nothing in the ADA compels an employer to tolerate threats of violence or any other problem that would interfere with normal business activity.

When the ADA compelled businesses to accommodate disabled employees and customers, some industries took another look at the millions of disabled citizensand saw a business opportunity. If 43 to 54 million people are disabled, thenone person out of every six is affected. Innovations such as banking by mailand banking over the Internet offer convenience to both the disabled and thenondisabled communities. Speech recognition software offers computer-generated text for individuals with a wide range of temporary and permanent disabilities. Adaptations such as braille instructions, curb cuts, ramps, automatic doors, and TTY/TDD (Telecommunications Devices for the Deaf) phone lines openup possibilities for a much more inclusive society.

For more information on the Americans with Disabilities Act, you can contactthe Equal Employment Opportunity Commission (800/669-3362), the President's Committee on employment of People with Disabilities (202-376-6200), or the U.S. Justice Department (202/366-1656).

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