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Services: ADA Link to: United States Dept. of Justice Website THE AMERICANS WITH DISABILITIES ACT (ADA) What is the ADA? The Americans with Disabilities Act (ADA) is a federal law forbidding discrimination against persons with disabilities passed by Congress and signed by President Bush on July 26,1990. It may be found at 42 U.S.C. 12101, et. seq. The ADA is divided into five titles. Title 1 covers employment discrimination. Title II forbids discrimination in public services: including those offered by state and local government, public bus systems and public rail systems. Title III covers public accommodations offering goods or services to the general public, including transportation services provided by privately owned bus and rail companies. Title IV sets out the requirements for telecommunications relay services. Title V contains various miscellaneous provisions. Under all five titles a "person with a disability" may be either: (a.) A person with a physical or mental impairment that substantially limits one or more major life activities (examples: walking, seeing, hearing, speaking, breathing, working, etc.). The severity of the impairment is assessed without regard to medication or assistive devices (crutches, wheelchairs, hearing aids, etc.), (b.) A person with a record of a disability, or (c.) A person who is regarded as having a disability, i. e., someone with a less severe impairment who is treated by others as having an impairment which limits a major life activity. Discrimination based on the current illegal use of drugs is not unlawful under the ADA. Health services, however, cannot exclude individuals currently engaged in the illegal use of drugs. The ADA does not consider homosexuality and bisexuality to be disabling impairments. The term "disability" does not include sexual disorders (transvestism, transexualism, pedophilia, exhibitionism, etc.), compulsive gambling, pyromania, or kleptomania. This section covers the protections against discrimination in the provision of public services offered by state and local governments contained in Title II of the ADA. 42 U.S.C. 12131-12134. The title outlaws discrimination against "qualified" individuals with disabilities in all programs and activities of all departments, agencies, special purpose districts, and other instrumentalities of state and local government. Who is a "qualified" individual with a disability? An individual with a disability who meets the essential eligibility requirements for the receipt of services or participation in a program or activity of government is "qualified". The individual is "qualified", even if in order to meet the eligibility requirements, it is necessary to: 1. Make reasonable modifications to rules, policies, and practices, What is required of state and local governments? Generally, state and local governments may not exclude people with disabilities, nor deny them services or the ability to participate in programs and activities. They may not discriminate either directly or by contract. Services and programs must be offered in the most integrated setting appropriate to the needs of the individual. If specialized programs or services for the disabled are offered, individuals with disabilities may choose to participate in the more general programs. Eligibility criteria may not be used to screen out individuals with disabilities, unless such criteria can be shown to be necessary for the provision of services or programs. Legitimate safety requirements may be imposed but they must be based on actual risks and facts, not on speculation or stereotypes. A state or local government must make reasonable modifications in its policies practices and procedures when necessary to afford services and programs to persons with disabilities, unless it can demonstrate that the modifications would fundamentally alter the nature of the services or programs provided. Even law enforcement agencies must make changes in policies that result in discriminatory arrests or abuse of individuals would disabilities. Surcharges cannot be imposed solely on persons with disabilities to cover the cost of compliance with the ADA. It is also unlawful to discriminate against non-disabled individuals because they associate with persons with disabilities. Persons with disabilities may not be harassed nor retaliated against for exercising their rights. State and local governments may not discriminate against qualified individuals with disabilities in the granting of licenses and certifications nor in administering such programs. Requirements for the programs or activities of licensees or certified entities may not subject qualified individuals with disabilities to discrimination. What access must be offered by state and local governments to qualified individuals with disabilities in existing facilities? As a basic rule, state and local governments must operate each program so that, viewed in its entirety the program is readily accessible to and usable by people with disabilities. Program access is not required is the government can show that a "fundamental alteration" of the programs or that "undue financial or administrative burdens" would result. If a program can be may accessible by some method other than providing architectural access, then architectural access is not required. Other methods include: 1. Redesign of equipment
For example, if an existing government office building has steep stairs with no ramp, workers could meet with wheelchair bound individuals in an accessible office across the street. The government would not be required to install a ramp. Carrying is not allowed except in extremely unusual and exceptional cases. Governments will be excused from providing program access on the basis of "fundamental alteration" or "undue burden" only in the most unusual cases. The government's decision to deny access must be in writing and signed by a high official, no lower than a department head, with budgetary authority. Must state and local governments who build new facilities or alter existing ones comply with the architectural accessibility requirements of the ADA? Yes. Effective 1-26-98, new construction and alterations must be "readily accessible and usable by" persons with disabilities. The ADA Accessibility Guidelines must be strictly followed. Buildings leased or rented by the government do not have to be physically accessible. The program access requirements do apply, however. Are state and local governments required to make roads and sidewalks accessible? Yes. Where the government has authority over roads and sidewalks it must provide physical access in the form of curb ramps or sloped areas to all. Providing curb ramps to sidewalks serving state and local government buildings, public accommodations, transportation facilities and places of employment must be given first priority. When must "auxiliary aids and services" be offered to ensure communications accessibility? "Auxiliary aids and services" must be provided when necessary to avoid segregating or excluding an individual with a disability or denying services to the disabled unless providing them would either fundamentally alter the nature of the service or be an undue burden (requiring significant difficulty or expense) to the local or state government. Examples of auxiliary aids and services include: 1. Qualified interpreters, decoders, open/closed captioning, TDDs, etc.
Primary consideration must be given to the request of the disabled individual for a particular auxiliary aid unless the government can demonstrate another means of communication is effective or that the individual's choice would be a fundamental alteration of the service or an undue burden on the government. Governments will be excused from providing an auxiliary aid or service on the basis of "fundamental alteration" or "undue burden" only in the most unusual cases. The government's decision to deny access must be in writing and signed by a high official, no lower than a department head, with budgetary authority. Is there a process by which state and local governments are required to address accessibility under the ADA? Yes. Each unit of local and state government was required to complete a self evaluation, with public input, by January 26,1993. 28 CFR 35.105. A written document, called a transition plan, was to be developed by July 26,1992. 28 CFR 35.150(d). That document should: 1. Identify physical obstacles which limit program access
All structural changes were to be made as soon as practicable, but no later than January 26, 1995. How may an individual address a state or local government's failure to comply with the ADA? Internal grievance procedure. All state and local governments with 50 or more employees must designate at least one employee to coordinate the government's effort to comply with the ADA. That employee must ensure that any complaints alleging failure to comply are investigated. Such governments must adopt and publish voluntary grievance procedures providing for the resolution of ADA complaints. Administrative complaints to the federal government. An individual may file an administrative complaint within 180 days after the incident of discrimination with either (a) the federal agency providing funding to the state or local government program (b) one of eight other designated federal agencies or (c) the Department of Justice. After investigation the agency will attempt to informally resolve the complaint. If that effort is unsuccessful the agency will send a Letter of Findings to the local or state government. If voluntary compliance cannot be achieved, the case is referred to Department of Justice which has the power to file a lawsuit. Private lawsuits. An individual may file a lawsuit at any time without filing an administrative complaint. The court may order the state or local government to comply with the ADA, award attorney fees and grant damages. Alternative dispute resolution. If all parties agree, the dispute may be referred to mediation or arbitration. What is a public accommodation? A place of public accommodation is a facility fitting one of the following 12 categories:
Title III applies only to places of public accommodation which are owned, leased, or operated by a private entity (Title II of the ADA covers governmental services and facilities). Private membership clubs and religious entities are exempt from this title of the ADA. What is required of public accommodations? Generally, public accommodations may not exclude people with disabilities, nor deny them goods or services. They may not discriminate either directly or by contract. Goods and services must be offered in the most integrated setting appropriate to the needs of the individual. If specialized programs for the disabled are offered, individuals with disabilities may choose to participate in the more general programs. Eligibility criteria may not be used to screen out individuals with disabilities unless such criteria can be shown to be necessary for the provision of goods and services. Legitimate safety requirements may be imposed but they must be based on actual risks and facts, not on speculation or stereotypes. A public accommodation must make reasonable modifications in its policies, practices and procedures when necessary to afford goods and services to persons with disabilities unless it can demonstrate that the modifications would fundamentally alter the nature of the goods and services provided. Service animals may not be excluded. Surcharges cannot be imposed solely on persons with disabilities to cover the cost of compliance with the ADA . Is also unlawful to discriminate against non-disabled individuals because they associate with persons with disabilities. Are public accommodations required to be architecturally accessible? New construction. All public accommodations first occupied after 1-26-93 must be accessible to and usable by persons with disabilities; meaning built in compliance with U.S. Department of Justice regulations and ADA Accessibility Guidelines. Elevators are not required, however, for buildings with less than three stories or less than 3,000 square feet per story unless the building is a shopping mall, public transportation depot or terminal, or a health care provider's office. Areas used by employees, not the general public, do not have to be made accessible. Existing facilities. Existing facilities must also be made accessible by removing architectural, communication, and transportation barriers where it is "readily achievable" to do so. "Readily achievable" means easily accomplishable and able to be carried out without much difficulty or expense. Facilities existing at the time the ADA passed in 1990 were granted a grace period during which enforcement actions could not be brought. The last grace period expired on 1-26-93. Readily achievable barrier removal is an ongoing obligation. Compliance with ADA Accessibility Guidelines is required if readily achievable. If full accessibility is not readily achievable at once, the ADA establishes priorities for compliance. The highest priorities are access to the facility, followed by access to goods and services. Access to public rest rooms is the third priority, followed by remaining measures. Assembly areas must provide a reasonable number of wheelchair seating spaces and seats with removable arm rests. Spaces should be dispersed, enjoin an accessible route, permit individuals to sit with companions and provide a range of ticket prices. If barrier removal is not readily achievable, goods and services must be made available by alternative methods. Such methods include curb service, retrieving merchandise from high shelves, rotation of films in multi-screen theaters, etc.. Alterations. If it existing facility is altered, the altered area must be accessible to the maximum extent feasible. Moreover an accessible path of travel to the altered area must be provided. Tax credits and deductions. To help small businesses comply, Congress approved a tax credit of up to 50 % of the amount spent on removing barriers and providing auxiliary aids/services. A small business is one with gross receipts of up to $1 million annually or up to 30 full-time employees. Businesses of any size may receive a tax deduction of up to $15,000. When must public accommodations offer "auxiliary aids and services" to ensure communication accessibility? "Auxiliary aids and services" must be provided if necessary to avoid segregating or excluding an individual with a disability or denying goods or services unless providing them would either fundamentally alter the nature of the goods and services or be an undue burden (requiring significant difficulty or expense). The public accommodation may choose which auxiliary aid or service to provide, so long as it provides effective communication. Examples of auxiliary aids and services include:
TDDs are not required where outgoing calls are on an incidental or convenience basis. Closed caption decoders are required in places of lodging that have five or more guest rooms. Disabled individuals may not be required to pay surcharges for auxiliary aids and services. Must examinations and courses be made accessible? Yes. Organizations offering exams or courses related to licensing or certification for educational, professional, or trade purposes must offer them in an accessible place and manner. Examples include: real estate licensing courses, Law School Aptitude Test (LSAT) courses and interior design credentialing exams. Auxiliary aids and services must be provided unless to do so would create a fundamental alteration or cause an undue burden. Architectural access or alternative accessible arrangements must be provided. Changes in the length of exams or in the manner in which they are given may be required. Integrated settings for courses are not mandated, but in most cases entities offering courses are public accommodations which are mandated to have such integration. Who can enforce Title III of the ADA? Private individuals. Private individuals may file complaints with the Department of Justice, file lawsuits in federal court or (if all parties agree) resolve disputes through arbitration or mediation. A court may not award damages to the private individual, but may order the public accommodation to comply with the law and pay for the individual's attorneys fees/other costs. If a building is being newly constructed or altered, suit may be filed before construction is completed. U.S. Attorney General. The Attorney General may sue where there is a pattern or practice of discrimination or a case of general public importance. In addition to getting an order to follow the law, the Attorney General may ask the court to fine the public accommodation up to $50,000 for a first violation and $100,000 for a second. The Attorney General may also ask the court to award damages to individuals harmed by the violations. If you feel your rights have been violated, you may want to consult an attorney. If you do not know one or cannot afford one, you can call: Clark County Legal Services
ADA Links The following web sites may provide additional or assistance: U.S. Architectural and Transportation Barriers and Compliance Board I.R.S. (Tax credits) |
