Last Updated August 26, 2009

INFORMATION ABOUT THE AMERICANS WITH DISABILITIES ACT

Congress enacted the Americans with Disabilities Act (ADA) in 1991 and significant amendments to the Act that became effective on January 1, 2009. The ADA attempts to provide a comprehensive solution to discrimination in employment, government services and public accommodations against people with disabilities. The Department of Justice has a toll-free ADA Information Line at 800-514-0301.

We hope that the questions and answers presented here will assist you in familiarizing yourself with the terms and provisions of the ADA. While the material below attempts to answer common questions in this area, nothing provided here is a substitute for the advice of competent counsel. We strongly urge you to consult with an attorney licensed to practice in your state about any particular legal problem you may have.

WHO IS PROTECTED BY THE AMERICANS WITH DISABILITIES ACT?

The Act covers people with both physical and emotional disabilities. For purposes of the Act, a person is considered to "be disabled" or to "have a disability" if he or she:

• has a physical or mental impairment that substantially limits one or more of his or her major life activities
• has a record of such an impairment or
• is regarded as having such an impairment.

For example, persons with an amputated leg, or persons infected with the AIDS virus or people suffering from certain emotional illnesses are covered by the Act.. However, some conditions, such as illness resulting from current illegal drug use are expressly excluded from the Act's protection.

This definition of "disability" is broader than many used in the past. So a person who is perceived by others to be disabled may be entitled to the ADA's protections even if he or she can objectively perform as well as a non-disabled person.

WHAT MUST MY EMPLOYER DO TO ACCOMMODATE MY DISABILITY?

Under the ADA, no covered employer may discriminate in hiring, promoting or laying off any person with a disability. The law requires that employers make "reasonable accommodations" for their disabled employees so as to allow them to perform their jobs efficiently and safely. Sometimes it is hard to be sure whether or not the employer has complied with the law. The meaning of the phrase "reasonable accommodation" is, however, hotly debated and one of the major sources of ADA litigation.

Employers are not required to go to outrageous expense or trouble to make accommodations for a disabled employee. The key is whether the requested accommodation is objectively reasonable or not. Some examples of a "reasonable accommodation" are:

Making existing facilities readily accessible (e.g., installing a wheelchair ramp);
Job restructuring or reassignment;
Part-time or modified work schedules;
Acquiring or modifying equipment, devices, examinations, training materials or policies;
Providing qualified readers or interpreters;
Providing assistive devices, such as teletype writers or telephone amplifiers, special computers or tactile markings on equipment; and
Braille or large-print tests.

WHAT HAPPENS UNDER THE ADA IF MY EMPLOYER DOES NOT ACCOMMODATE MY DISABILITY?

If you are fired as a result of your disability, file a complaint with the Federal Equal Employment Opportunity Commission (EEOC) within 180 days of your discharge. The EEOC will investigate your claim and attempt to resolve it. If the EEOC does not resolve the matter within 180 days, it will give you a "right to sue" letter so that you can bring a claim in Federal Court to get your job back and back pay.

MAY AN EMPLOYER MAKE A PROSPECTIVE EMPLOYEE SUBMIT TO A PHYSICAL?

The Americans with Disabilities Act allows employers to require perspective employees to take a physical exam, so long as the employer requires this of all prospective employees. All exams must be treated confidentially and the files may not be disclosed to the public.

DOES THE ADA APPLY OUTSIDE OF THE WORKPLACE?

In addition to the protection it affords disabled workers, the ADA has provisions that deal with rights of disabled Americans when seeking government services and public accommodations.

In general, government services must be provided in a non-discriminatory manner so as to maximize the mainstreaming of disabled Americans. The issues surrounding the nature of disabilities and the accommodations which must be made are similar to those in the employment realm. For example, cities are expected to make curb cuts for wheelchairs when building new sidewalks but do not have to tear up all of the old ones.

Any covered business serving the public must be accessible. Hence, bathrooms must be handicapped-accessible and barriers to disabled people's use of the business must be either removed or lowered as much as possible, given the economic and physical realities of the particular business.

HOW CAN I FIND OUT MORE ABOUT WHICH PRACTICES AND ACTIVITIES ARE COVERED BY THE AMERICANS WITH DISABILITIES ACT?

Refer to the Americans with Disabilities Act Handbook, which is a comprehensive handbook that serves as a fundamental guide to all five titles of the ADA. In layman's terms, it explains:

• disability tax-related deductions and applicable business credits;
• common types of accommodations that employers are required to provide;
• how to alter establishments to accommodate people with disabilities;
• "reasonable accommodation" and "undue hardship";
• rights and responsibilities of employers and employees in the hiring process

Other publications about the ADA are available for free from the U.S. Department of Justice.

This is just a brief summary of a very complex and far reaching law. If you or someone you know believe they have been the subject of discriminatory conduct prohibited by the ADA, a DESSEN, MOSES & ROSSITTO attorney will be happy to review the facts of the incident. Just press the button below to submit a factual history form.

If you have other questions or comments about this area or any other area in which we practice, please send us an E-mail message with your questions or comments and we will be happy to try to assist you.