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The Americans With Disabilities Act — By MICHAEL R. LIED, Husch & Eppenberger, Peoria, Illinois The Americans With Disabilities Act ("ADA"), signed into law on July 26, 1990, provides comprehensive civil rights protections to individuals with disabilities in the areas of employment, public accommodations, state and local government services, and telecommunications. Recent regulations issued by the U.S. Department of Justice clarify the obligations applicable to state and local government services. The statute is complex, and regulations have now been issued dealing with the obligations of state and local governments under the ADA. The discussion below contains basic highlights of the new rules. Background of Disability Rule Subtitle A of Title II of the ADA prohibits discrimination on the basis of disability by public entities. This subtitle prohibits discrimination on the basis of disability in the services, programs, or activities of all state and local governments. While some state and local governments are presently covered by Section 504 of the Rehabilitation Act of 1973, the ADA extends disability discrimination prohibitions to state and local government employers which do not receive federal financial assistance, and which would therefore not otherwise be covered by the Rehabilitation Act. The regulations make clear that the ADA applies to all services, programs, and activities provided or made available by public entities or any other instrumentalities or agencies. Coverage includes state and local governments, departments, agencies, special purpose districts or other instrumentalities of the state or a local government. The regulation covers all facilities, including building structures, sites, road, walks, passageways, parking lots or other real or personal property. Title II covers not only "executive" agencies, but also legislative and judicial branches of the state and local government and even governmental activities carried out by contractors. Public schools are specifically covered. Structure of the Rule The coverage of the rule can be broken down in three main categories. These include (1) employment activities of state and local governments (which may also be covered by the employment rules in Title I of the ADA), (2) programs or activities involving general public contact, and (3) public services directly administered by the entities for program beneficiaries and participants. Thus, in addition to the employment requirements, the rule covers communications with the public, through telephone contacts, office walk-ins or interviews, and the public's use of the entity's facilities. The rule also regulates programs which provide state or local government services or benefits. The regulation is organized in seven subparts. Subpart A includes the purpose and applications sections, describes how the ADA relates to other laws, and defines key terms. It also includes certain administrative requirements adapted from the Rehabilitation Act regulations for entity self-evaluations, notices to the public, designation of responsible employees, and adoption of grievance procedures by public entities. Subpart B contains the general prohibitions against disability discrimination and certain provisions relating to retaliation against persons asserting ADA rights, illegal use of drugs, and restrictions on smoking. Subpart C addresses employment by public entities. As noted above, public employment may also be covered by Title I of ADA. Subpart D sets forth requirements for program accessibility in existing facilities and for new construction and alterations. Subpart E sets forth requirements for communications with the public entity. Administrative enforcement procedures appear in subpart I, and subpart G sets forth a number of federal agencies responsible for investigation of complaints under the ADA. Definition of Disability In determining obligations under the ADA, it is important to determine what is, and what is not, a disability. The term "disability" means, with respect to an individual, (a) a physical or mental impairment that October 1991 / Illinois Municipal Review / Page 17 substantially limits one or more of the major life activities of the individual; (b) a record of such an impairment; or (c) being regarded as having such an impairment. To the extent that an individual meets any one of these three tests, he or she is considered to be an "individual with a disability" for coverage under the ADA. Definition of Impairment An "impairment" is any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine. This definition also includes any mental or psychological disorder, such as retardation, organic brain syndrome, emotional or mental illness, and certain learning disabilities. The regulation lists a number of physical and mental impairments specifically including HIV disease, whether symptomatic or asymptomatic, drug addiction and alcoholism. Homosexuality and bisexuality are expressly not included in the definition of physical or mental impairment. Also excluded are transvestism, transsexualism, pedophilia, and other sexual behavior disorders, compulsive gambling, kleptomania, pyromania and psychoactive substance use disorders resulting from current (but not former) illegal drug use. The concept of impairment also does not include simple physical characteristics, environmental, cultural, economic, or other disadvantages, or common personality traits. With regard to individuals having a record of an impairment, this provision attempts to protect individuals who have recovered from a physical or mental impairment which previously substantially limited a major life activity. Examples would include histories of mental or emotional illness, heart disease or cancer, as well as those who may have been misclassified as having mental disabilities. An individual regarded as having an impairment is covered if a public entity refused to serve him or her because of a perception that the person had an impairment limiting the ability to enjoy the goods or services being offered. Note that such a person may or may not actually be disabled or impaired. Page 18 / Illinois Municipal Review / October 1991 Definition of Substantially Limits The "impairment" must be one which "substantially limits a major life activity". Such activities include caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working. Minor or trivial impairments, or those expected to be of temporary duration, are probably not regarded as a disability for purposes of the ADA. Self-Evaluation Requirement Like public entities covered by Section 504, all public entities will now be required to do a self-evaluation to determine if their operations tend to impact the ability of disabled persons to utilize the public services or facilities. Those which employ 50 or more persons must maintain the self-evaluation on tile and make it available for public inspection for 3 years. While there is a one year period for compliance with this self-evaluation requirement, this grace period does not shield public entities from discrimination claims in the interim.
Notice of Rights, The regulation also requires public entities to disseminate sufficient information to applicants, participants, beneficiaries, and other interested persons to inform them of rights and protections afforded by the ADA. This may be accomplished by providing handbooks, manuals or pamphlets, displays or informative posters, and broadcast of information over television or radio. For public entities with 50 or more employees, a responsible employee must be designated for self-evaluation and compliance, and the public entity must also adopt grievance procedures for dealing with complaints of discrimination. Discrimination Prohibited As noted, the rule basically prohibits discrimination against individuals with disabilities. Thus, the rule would prohibit overt denial of equal treatment, or the denial of a disabled person's right to participate in or benefit from the aids, benefits or services provided by a public entity. Any aids, benefits and services provided to persons with disabilities must be equal to those pro- October 1991 / Illinois Municipal Review / Page 19 vided to others, and must be as effective, in affording equal opportunity to obtain the same result or benefit, as those provided to others. The rule permits public entities to develop separate or different aids, benefits or services, but only when necessary to insure that such aids, benefits or services are as effective as those provided to others. Note that a qualified individual with a disability still has the right to choose to participate in the program not designed to accommodate individuals with disabilities. The rule does not require the disabled individual to accept an offered accommodation, aid, service or opportunity or benefit. The rules, taken together, are intended to prohibit exclusion and segregation of persons with disabilities or the denial or equal opportunities based on presumptions, patronizing attitudes, fears, and stereotypes about disabilities. Public Accommodations The rule requires public accommodations to be maintained in operable, working condition so as to permit ready access and accessibility by persons with disabilities. However, a public entity need not provide personal devices, such as wheelchairs, prescription eyeglasses or hearing aids, in order to make the program more accessible. While a public entity must attempt to make existing facilities readily accessible and useable, it is not necessary that each existing facility be accessible and useable by individuals with disabilities. Nor is it necessary to make fundamental alterations in the nature of the services, programs or activities, or to incur undue financial or administrative burdens. The public entity need not take any action which would threaten or destroy the historic significance of a historic property. However, with regard to historic preservation programs, the public entity must give priority to methods which provide physical access to individuals with disabilities. In some cases, physical alterations may not be required, and alternative methods achieving program accessibility may be adopted, including use of audio visual materials and devices to depict portions of a historic property which cannot otherwise be made accessible, assigning guides for individuals with handicaps or adopting other innovative methods. New Construction For new construction or alterations, new construction must be designed and built in such a manner that the facility or part of the facility is readily accessible to and useable by individuals with a disability, if construction is commenced after January 26, 1992. Public Communications The public entity must also take steps to insure that communications with the public, including applicants, participants and others with disabilities, are as effective as with other individuals who are not disabled. The public entity may be required to furnish appropriate auxiliary aids and services, telecommunication devices for the deaf, and information or signs to permit effective use of the facilities. Compliance and Enforcement The regulation contains certain compliance procedures. Any disabled individual who believes he or she has been subjected to discrimination may file a complaint, not later than 180 days from the alleged discrimination, unless time for filing is extended by the designated agency for good cause. A complaint is deemed filed on the date it is first filed with any federal agency. A complaint may be filed with any agency believed to be the appropriate agency designated under the regulation, with any agency that provides funding, or with the Department of Justice, for further referral. The designated agency must investigate each completed Page 20 / Illinois Municipal Review / October 1991 complaint, attempt an informal resolution, and if unsuccessful, issue to the complainant and the public entity a letter of findings including certain findings of fact and conclusions of law, a description of a remedy for each violation found, and notice of further rights under the regulation. The agency must attempt to achieve voluntary compliance, failing which enforcement may be undertaken by the Attorney General. This could lead to loss of federal funding. At any time, the complainant may also file a private suit under the act, regardless of whether the designated agency has found a violation. The regulation specifically provides for remedies for disability discrimination, whether the claim is brought by the Attorney General or in an individual suit, and provides for recovery of attorney fees. The ADA does not displace any rights or remedies provided by federal or state law, including the common law. Conclusion The ADA will be a significant impetus for affording equal rights to persons with disabilities. The law and regulation are detailed, and state and local governments should act now to become familiar with the requirements. •
October 1991 / Illinois Municipal Review / Page 21 |
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