On July 26,1990, President Bush signed into law the Americans With Disabilities Act (ADA) (P.L. 101-336). This legislation may have a significant effect on many municipalities in Illinois, as well as across the U.S.

The ADA is important not only in its provisions, but also in its intentions, as it follows the path cut by the Civil Rights Act of 1964, and considers discrimination against disabled persons to be a breach of their civil rights.

The Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Justice are charged with oversight and enforcement of the provisions of the Act. Sections of the Act dealing with public services and transportation are being administered by the U.S. Architectural and Transportation Compliance Board, and the U.S. Department of Transportation.

Proposed EEOC rules for the ADA were issued in the February 28, 1991 issue of the Federal Register. These rules closely parallel the ADA itself, and provide few insights into the law other than to clarify its intent in some areas.

What does the ADA portend for municipalities in Illinois?
Its most substantial effects will be felt in two areas:

1) municipal employment and hiring practices, and 2) provision of all municipal services. These two areas have been determined by the Act to be sources of discrimination against disabled persons, and are targets of this legislation.

Who will be affected by this legislation?
All public and private employers with more than 25 employees Will be subject to compliance with the law as of July 26, 1992. Smaller employers with 15 or more employees will be required to abide by its provisions by July 26,1994. Employers with fewer than 15 employees are not covered under the mandate of this Act.

Who is protected by the Act?
Under Title I of the ADA, only a "qualified individual with a disability" is protected. They are defined as:

"an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires."

What qualifies as a "disability?"
The Act uses the same definition of "disability" as the one found in the 1973 Rehabilitation Act (34 CFR, Part 104): "someone who has a physical or mental impairment that substantially limits them in some major life activity."

This definition is clarified by the February, 28 EEOC rules, and it is important to note that it may include, but is not limited to: 1) alcoholics, 2) rehabilitated drug users (current users of illegal drugs are not "disabled"), and 3) those who are suffering from AIDS or other related diseases unless they pose a "direct threat" to other workers that cannot be eliminated by "reasonable accommodations."

I. The ADA and Municipal Employment and Hiring

Practices A. Discrimination:

In Title I, the ADA more tightly defines "discrimination", and extends protection against it to "qualified individuals with a disability" in three main areas: 1) during the application and hiring process, 2) when performing the essential duties of the position, and 3) when receiving benefits and privileges of employment enjoyed by other employees who are not disabled.

Some examples of discrimination included within the Act's definition are: 1) segregating, limiting, or classifying disabled employees, 2) not making "reasonable accommodations" for an employee's disability (unless they cause "undue hardship"), and 3) using any employment criteria (such as medical exams before employment or during the duration of the worker's employment) that intentionally or unintentionally discriminate against disabled persons. If medical exams are to be given, they must be of "business necessity," and be given to all applicants.

In addition, asking questions concerning the extent, nature or severity of a potential employee's disability are prohibited. Employers may only ask questions concerning the ability of the worker to perform the "essential functions" of the position for which they are applying.

B. Reasonable Accommodations/Undue Hardship:
In order to prevent discrimination against the disabled, "reasonable accommodations" must be made in all cases. However, the subject of "reasonable accommodations" is a gray area that includes, but is not limited to: 1) restructuring of work responsibilities (such as part-time or modified work schedules) 2) making existing facilities accessible to and usable by disabled persons, 3) acquiring or modifying equipment or other work related devices, and 4) providing any readers or interpreters necessary for the employee to function properly. These modifications may not, however, impose "undue hardship" on the employer.

Under proposed EEOC rules, "reasonable accommodation" is interpreted to mean "any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities." (Federal Register, 2/28/91, p. 8588)

May 1991 / Illinois Municipal Review / Page 7

"Undue hardship" is also clarified, and is defined as:

"any accommodation that would be unduly costly, extensive, substantial, or disruptive, or that would fundamentally alter the nature or operation of the business." (Ibid., 2/28/91, p. 8596)

A definition for what is "unduly costly" is not included in the rules. EEOC decisions based on cost factors will most likely be made on a case-by-case basis taking into account the size and nature of the employer.

In sum, the provisions of Title I of the ADA dealing with hiring and employment practices may provide additional legal recourse for disabled persons in cases where they may have been discriminated against. This legislation is very non-specific, and it is certainly open to what may become substantial legal interpretation.

II. The ADA and the Provision of Public Services
A. General:
Under Title II of the ADA, no "qualified individual with a disability," on the basis of that disability, can be excluded from participating in any programs or activities of a municipality. They also may not be denied any benefits of services provided by the locality because of their disability.

Achieving compliance with this law may require the provision of TDD (Telephone Devices for the Deaf) for public information telephone numbers or other telephone services, interpreters and readers for deaf and blind persons, and any other means necessary to make the particular public service available and accessible to disabled persons.

B. Transportation/Barriers to Access:
Under the concept of accessible public services, transportation services provided by municipalities are also covered by this Act. Municipal officials will be prohibited from purchasing new transit vehicles that are not lift-equipped for the disabled. In addition, the ADA mandates the provision of paratransit services that are available on-demand for those who are so disabled as to not be able to use mass transit even after it has been modified.

Public transit stations (only "key" stations as defined by the U.S. Department of Transportation (DOT)) for rail and other types of mass transit must be completely accessible to disabled persons in all public areas under the ADA. In addition, at least one car per train of mass transit systems must be accessible to the disabled.

Proposed construction and architectural rules from the U.S. Architectural and Transportation Barriers and Compliance Board (ATBCB) are published in the January 22nd, 1991 Federal Register. These rules specify construction and building standards that will achieve compliance with the new law.

It is important to note that current Illinois state rules dealing with disabled access (Title 71, Part 400 of the Illinois Administrative Code) may be as stringent in many areas as those rules proposed by the ATBCB under the guidelines of the ADA. However, it is very important that all municipalities be in compliance with federal law first, and any state laws thereafter. As such, review of the recently proposed ATBCB rules and any future DOT rules would be strongly recommended should questions of compliance arise.

Summary
The ADA is serious federal legislation that may impose considerable costs on some municipalities, and may not affect others at all. Its provisions may lend themselves to litigation, increased capital costs, and more federal oversight of municipal government. All municipal officials must be aware of this new law and its effects on their employment and hiring practices, as well as on their provision of municipal services.

For more information on the ADA, please call Jim McCurdy at the League office at 217/525-1220. •

State Treasurer Patrick Quinn discussed IPTIP with Mayors visiting the League Headquarters.

Beginning with the next issue Secretary Ryan will be providing informational articles about services and programs in the Secretary of State's Office.

Page 8 / Illinois Municipal Review / May 1991