THE AMERICANS WITH DISABILITIES ACT
The Americans with Disabilities Act ("ADA"), Public Law 101-336, 42 U.S.C.
Sec. 12101 et seq., was signed into law on July 26, 1990. It makes a strong
national commitment to the integration of more than a fifth of our population
into the mainstream of American society. This largest and fastest growing
minority is one which anyone can join. As Attorney General Richard Thornburgh
testified in support of the ADA,
"persons with disabilities all too often are not allowed to
participate because of stereotypical notions held by others
in society -- notions that have, in large measure, been
created by ignorance and maintained by fear." [June
23,1989, before Senate Committee on Labor and Human
The ADA represents the triumph of reason over ignorance and of courage over
While the ADA will be phased in over several years, giving people around the
country an opportunity to come to understand that, as someone with a
disability once said, "the only thing we have to fear is fear itself," people
in New York have been living for almost two decades with laws recognizing
rights of people with disabilities which are in some instances even greater
than those provided in the ADA. For example, employers of four or more people
and providers of public accommodations may not discriminate against people
with disabilities (regardless of whether the employer or provider receives
government funds); reasonable accommodations, including architectural
modifications, job restructuring and provision of auxiliary aids also are
required. Indeed, to those conversant with Secs. 503 or 504 of the Federal
Rehabilitation Act of 1973, much of what follows will seem familiar. However,
for those travelling or doing business in jurisdictions which have not yet
recognized these rights, as well as for those who have not had experience with
the earlier Federal legislation and regulations, it may be helpful to review
the key provisions of the ADA. This is intended as an introduction to a new
law, rather than as a detailed analysis or application of each of its
The stated purposes of the ADA are to provide a "national mandate for the
elimination of discrimination against individuals with disabilities"; to
provide "enforceable standards addressing [such] discrimination"; to ensure a
central enforcement role for the Federal government; and "to invoke the sweep
of congressional authority . . . in order to address the major areas of [such]
discrimination...." Sec. 2(b). (References are to the sections of the ADA,
unless otherwise specified.)
Section 3 includes some key definitions, although several of the ADA's
Titles have further definitions.
- 61 -
"(2) DISABILITY. -- The term 'disability' means, with respect to
an individual --
(A) a physical or mental impairment that substantially limits
one or more of the major life activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment."
This definition tracks the definition of the no longer favored term "handicap"
from the Rehabilitation Act of 1973, as well as from most similar legislation
"Auxiliary aids and services" include provision of qualified sign language
interpreters and readers, "acquisition or modification of equipment or
devices; and . . . other similar services and actions." Again, requirements
for such aids and services are familiar aspects of earlier laws.
Title I -- Employment
"No covered entity [including private and public employers,
labor organizations and employment agencies] shall
discriminate against a qualified individual with a disability
because of the disability of such individual in regard to job
application procedures, the hiring, advancement, or discharge
of employees, employee compensation, job training, and other
terms, conditions, and privileges of employment."
Section 102(a) sets forth this "general rule"; a wide range of examples of
what constitutes such discrimination follows. Among many other things, a
failure to make "reasonable accommodations" to the known disabilities of an
otherwise qualified person with a disability is considered to be
discriminatory. Sec. 102(b)(5). A "qualified individual with a disability" is
a person with a disability who is qualified to do the essential functions of
the job in question -- with reasonable accommodations, if such accommodations
are needed. Sec. 101(8). Federal and other surveys have found that most
people with disabilities need little or no accommodation from the employer.
Accommodations may include removal of architectural barriers (Sec. 101(9)(A))
(for which the employer may look to Internal Revenue Code Sec. 190 for a tax
deduction of up to $35,000 per year),
"job restructuring, part-time or modified work schedules,
reassignment to a vacant position, acquisition or
modification of equipment or devices, appropriate
adjustment or modifications of examinations, training
materials or policies, the provision of qualified readers
or interpreters, and other similar accommodations for
individuals with disabilities." [Sec. 101(9)(B)]
The requirement for "reasonable accommodation" is modified by an employer's
opportunity to prove that making such accommodations would be an "undue
hardship". Sec. 102(b)(5)(A). The latter term is defined as "an action
requiring significant difficulty or expense, when considered in light of the
factors set forth in" Sec. 101(10)(B). Unlike formulations under the
Rehabilitation Act of 1973, the factors to be considered under the ADA include
site-specific effects of the accommodation. An employer also may require as a
"qualification standard" "that an individual shall not pose a direct threat to
the health or safety of other individuals in the workplace." Sec. 103(b). "The
term 'direct threat' means a significant risk to the health or safety of
others that cannot be eliminated by reasonable accommodation." Sec. 101(3).
Employment inquiries (including medical examinations) must be limited to those
which are job-related. However, employers may take adverse action against an
individual on the basis of use of illegal drugs and testing for such use is
not considered a "medical examination", although the ADA neither authorizes
nor prohibits such testing (which may not be permitted by State or City Human
Rights Laws). Voluntary medical examinations which are part of an employee
health program may be conducted, although, as with other permissible medical
inquiries, the results must be kept confidential. Secs. 102(c), 104.
Enforcement is in the hands of the Equal Employment Opportunity Commission
("EEOC"), the Attorney General and persons claiming discrimination, as it is
under Title Vll of the Civil Rights Act of 1964. Federal agencies with
responsibilities for enforcing the Rehabilitation Act of 1973 are to develop
procedures to avoid duplication of effort and inconsistency with the ADA. Sec.
Title I does not become effective until two years after the date the ADA was
signed into law (i.e., until July 26,1992), at which time it will cover
employers of 25 or more people; two years later, coverage will be expanded to
employers of 15 or more. Secs. 108,101(5)(A). New York's laws, which make
similar requirements of employers of four or more, already are in effect;
similar requirements of all recipients of Federal financial assistance
(regardless of the number employed) currently are in effect under the
Rehabilitation Act of 1973. Despite the delay in the effective date, the EEOC
is directed to issue regulations no later than one year after the date of
enactment. Sec. 106.
Title ll -- Public Services
State and local government entities are prohibited from discriminating against
a "qualified individual with a disability" and from excluding such a person
from participation in or denying such a person the benefits of the services,
programs, or activities of such entities. Sec. 202. A "qualified individual
with a disability" is one who "meets the essential eligibility requirements
for the receipt of services or the participation in programs or activities
provided by" such entities; where necessary for the individual to meet those
requirements, the entity must make "reasonable modifications to rules,
policies, or practices, . . . remov[e] . . . architectural, communications, or
transportation barriers, or provi[de] ... auxiliary aids and services .... "
Sec. 201(2). Requirements are to be consistent with those in various
regulations under Sec. 504 of the Federal Rehabilitation Act of 1973. Sec.
204(b). Standards are to be set by the Architectural and Transportation
Barriers Compliance Board. Sec. 204(c).
This general provision (Subtitle A) will be effective 18 months after
enactment, except that the requirements to promulgate rules within one year
are effective on the date of enactment. Sec. 205.
- 62, 63 -
Subtitle B of Title ll covers actions applicable to public transportation
provided by public entities. In general, public transportation entities are
required to purc;hase or lease for use on fixed route systems only vehicles
(new or used) which are readily accessible to people with all types of
disabilities, including those who use wheelchairs. Sec. 222. Public
transportation entities which operate fixed route service (except those that
provide solely commuter bus service) also must complement their fixed route
service with paratransit, which provides people with disabilities who are
unable to use the fixed route service with a level of service "comparable to.
. . [that] provided to individuals without disabilities using such system;"
except that response time need only be comparable "to the extent practicable".
Sec. 223(a); see Sec. 223(e). The person with a disability may be accompanied
on the paratransit by one other person not otherwise eligible to ride it. Sec.
223(c)(1)(B). There is an "undue financial burden" limitation with respect to
paratransit. Sec. 223(c)(4); see also Sec. 225 (concerning availability of bus
lifts). Public participation, especially from individuals with disabilities,
is required in developing paratransit plans. Sec. 223(c)(6). Transit
providers serving the same area can provide for a single coordinated
paratransit system. Sec. 223(c)(8). Demand responsive public transportation
systems must provide people with disabilities a level of service equivalent to
that provided to others. Sec. 224.
New transportation facilities must be built to be readily accessible to and
usable by people with disabilities, including those who use wheelchairs. Sec.
226. Generally, where facilities are being altered, the altered parts are to
be made accessible "to the maximum extent feasible"; where the area being
altered contains "a primary function", then "the path of travel to the altered
area and the bathrooms, telephones, and drinking fountains serving the altered
area" also must be made accessible, unless such additional alterations would
be "disproportionate to the overall alterations in terms of cost and scope (as
determined under criteria established by the Attorney General)." Sec. 227(a).
In rapid rail and light rail systems, only "key stations" need be made
accessible within three years of the effective date, except where making such
a station accessible would be extraordinarily expensive, in which cases the
Secretary of Transportation may extend the deadline until 20 years after the
effective date for two-thirds of the key stations and up to 30 years for the
remainder of those stations. Sec. 227(b). Existing facilities and trains must
be operated so that, when viewed in their entirety, they are readily
accessible to and usable by persons with disabilities; within five years after
the effective date of this provision, at least one car per train must be
accessible by wheelchair. Sec. 228.
Paratransit service, new facility accessible construction and accessible
operation of transportation programs and facilities in existing facilities
provisions become effective 18 months after enactment; the other provisions
relating to public transportation are effective upon enactment. Sec. 231.
- 64 -
Intercity rail transportation providers must have at least one car per train
readily accessible to and usable by people with disabilities, including those
who use wheelchairs, within five years after enactment of the ADA. Sec.
242(a)(1). It is unlawful to purchase or lease new rail cars which do not
provide a specified degree of accessibility for people who use wheelchairs.
Sec. 242(a). Similar provisions apply for commuter rail providers. Sec.
242(b). Purchasers or lessees of used rail cars for intercity or commuter rail
service must at least demonstrate good faith efforts to obtain accessible
cars. Sec. 242(c). Remanufactured cars must be accessible "to the maximum
extent feasible". Sec. 242(d). All new intercity and commuter rail stations
must be built to be readily accessible to and usable by people with
disabilities, including those who use wheelchairs. Sec. 242(e)(1). All
existing intercity rail stations must be made accessible within 20 years after
enactment; all existing key commuter rail stations must be made accessible
within three years, except that, in cases of extraordinary expense, that
period may be extended until 20 years after enactment. Sec. 242(e)(2)(A).
However, the degree to which such existing stations must be made accessible is
limited in the same way as for existing light and rapid rail stations,
discussed above. Sec. 242(e)(2)(B).
While the central provisions concerning intercity and commuter rail car and
station accessibility are effective upon enactment, definitions and interim
standards provisions are not effective until 18 months after enactment. Sec.
Title lll -- Public Accommodations and Services Operated by Private Entities
"No individual shall be discriminated against on the
basis of disability in the full and equal enjoyment of
the goods, services, facilities, privileges, advantages,
or accommodations of any place of public accommodation
by any person who owns, leases (or leases to), or
operates a place of public accommodation."
Section 302(a)'s general rule covers virtually every type of public
accommodation conceivable. An illustrative list is contained in Sec. 301(7).
The benefits provided to people with disabilities must be equal to those
provided to others (Sec. 302(b)(1)(A)(ii)) and such benefits may not be
separate from those provided to others unless such action is necessary to
provide the person with a disability with a benefit "that is as effective as
that provided to others" (Sec. 302(b)(1)(A)(iii)). Section 302(b)(1)(B) makes
"Goods, services, facilities, privileges, advantages,
and accommodations shall be afforded to an individual
with a disability in the most integrated setting
appropriate to the needs of the individual."
Discrimination on the basis of association with a person with a disability
also is prohibited, so that a non-disabled person accompanying a person with a
disability at a place of public accommodation could have a claim of
discrimination if the non-disabled person is denied benefits because of that
association. Sec. 302(b)(1)(E).
- 64, 65 -
Among specific examples of discriminatory practices are failures to make
reasonable modifications in policies, practices or procedures, failures to
provide auxiliary aids and service, unless it can be proven that such
modification or provision would fundamentally alter the nature of the
accommodatipn; and failures to remove architectural barriers in facilities and
vehicles to the extent that such removal is "readily achievable". Sec.
302(b)(2)(A). While New York laws contain similar prohibitions, the term
"readily achievable" is new in the ADA. It is defined as "easily
accomplishable and able to be carried out without much difficulty or expense."
Sec. 301(9). Although this is a weaker standard than the "reasonable
accommodation" applicable under either New York law or Sec. 504 of the Federal
Rehabilitation Act of 1973, the considerations spelled out in the ADA's
employment title in determining reasonable accommodation are used here as
Fixed route transportation systems which seek to purchase or lease vehicles
with a capacity of more than 16 people (including the driver) more than 30
days after the ADA was signed (i.e., orders placed after August 25,1990) may
only obtain vehicles readily accessible to and usable by people with
disabilities (including those who use wheelchairs); if the vehicles have a
capacity of 16 or fewer people, they either must be accessible or the
transportation system placing the order must provide equivalent service to
such people. Sec. 302(b)(2)(B). For demand responsive systems, equivalent
service must be provided or only accessible vehicles holding more than 16
people must be purchased or leased. Sec. 302(b)(2)(C). These provisions ((B)
and (C)) do not apply to over-the-road buses, which have more limited
requirements. Sec. 302(b)(2)(D).
People who pose a "significant risk to the health or safety of others that
cannot be eliminated by a modification of policies, practices, or procedures
or by the provision of auxiliary aids or services" need not be accommodated.
New facilities (for first occupancy later than 30 months after enactment) must
be built to be readily accessible to and usable by people with disabilities,
including those who use wheelchairs, except where it is proven to be
"structurally impracticable" to do so. Sec. 303(a)(1). Generally, where
facilities are being altered, the altered parts are to be made accessible "to
the maximum extent feasible"; where the area being altered contains "a primary
function", then "the path of travel to the altered area and the bathrooms,
telephones, and drinking fountains serving the altered area" also must be made
accessible, unless such additional alterations would be "disproportionate to
the overall alterations in terms of cost and scope (as determined under
criteria established by the Attorney General)." Sec. 303(a)(2). These
provisions do not "require the installation of an elevator for facilities that
are less than three stories or have less than 3,000 square feet per story
unless the building is a shopping center, a shopping mall, or the professional
office of a health care provider" -- or unless the Attorney General determines
that another type of facility needs an elevator. Sec. 303(b).
- 65, 66 -
General and special public transportation (including charter service) provided
to the general public by private entities (e.g., over-the-road buses, trains,
van services; but not airlines, which are covered by the Air Carriers Access
Act) is subject to requirements and prohibitions applicable to other forms of
public accommodations provided by private entities, as well as to requirements
and prohibitions applicable to other public and private transportation
entities. Sec. 304. However, potential access to one of the most significant
components of this type of transportation, over-the-road buses, is severely
limited by the permissible scope and content of regulations (see generally
Secs. 305 and 306); for example, an accessible restroom may not be required on
an over-the-road bus if it "would result in a loss of seating capacity" (Sec.
306(a)(2)(C)). Indeed, final regulations are not to be applicable until six
years after enactment for large carriers and seven years for smaller ones.
Private clubs and religious organizations are exempted from compliance with
this Title. Sec. 307.
Examinations and related courses pertaining to applications for educational
opportunities or professional or trade licensing must be given in an
accessible setting, or an alternative accessible location must be provided.
Remedies and procedures to require compliance by private sector providers of
public accommodations are rather limited. Injunctive relief is the prime
remedy, although there is little monetary incentive for either a plaintiff of
a plaintiff's counsel to pursue such a course. For example. a court might
order a public accommodation to admit a person with a disability, to provide
services or auxiliary aids, or to make a "readily achievable" architectural
modification. In an egregious case, the Attorney General might ask a court to
award a person who had suffered discrimination monetary damages, although
courts are specifically barred from awarding punitive damages in such a suit
brought by the Attorney General. Civil fines of up to $50,000 for the first
offense "to vindicate the public interest" would go to the public treasury.
Even then, courts are constrained to consider good faith efforts toward
compliance in deciding what, if any, penalty should be imposed. Sec. 308.
Better enforcement provisions are available for many of the same rights under
New York State and New York City Human Rights Laws, under the State Civil
Rights Law and even under the New York City Building Code.
For the most part, this Title is effective 18 months after enactment. However,
most civil actions are barred an additional six months for businesses which
employ 25 or fewer employees and have gross receipts of $1,000,000 or less,
and for one year for businesses which employ 10 or fewer and have gross
receipts of $500,000 or less. Sec. 310. Again, the relative strength of New
York's laws makes it unlikely that people there will wait to pursue the
remedies in this Title.
- 66, 67 -
Title IV -- Telecommunications
People with severe hearing and/or speech impairments use Telecommunications
Devices for the Deaf ("TDDs") to communicate with others who use TDDs as
people without such impairments use telephones. Currently, people with such
impairments cannot place a call to people who do not use TDDs, except in a few
states, such as New York. This Title requires establishment, within three
years after enactment, of a national relay service similar to the existing
intrastate system in New York. The communications assistant at the relay
center provides the necessary link between those who use only standard
telephones and those who use only TDDs. The service will operate seven days a
week, twenty-four hours a day, and will not cost users more than an equivalent
telephone call. Confidentiality and accuracy of communications must be
maintained. The content and length of communications may not be restricted.
Sec. 401 (adding 47 U.S.C. Sec. 225).
This Title also requires that public service announcements on television which
are funded in whole or in part by a Federal agency must be closed- captioned
so that a person who is deaf would be able to read the verbal content of the
message. Sec. 402 (adding 47 U.S.C. Sec. 611).
Title V -- Miscellaneous Provisions
The ADA does nothing to weaken standards under Title V of the Federal
Rehabilitation Act of 1973 (Sec. 501(a)), although Sec. 512 amends the
Rehabilitation Act to conform it to drug and alcohol abuse provisions of the
ADA (discussed more fully below). State and local laws recognizing the rights
of people with disabilities remain in force and are not weakened by the ADA.
Sec. 501(b). Insurance and other bona fide benefit plans consistent with
State laws are unaffected by the ADA, even if they base coverage on risk
factors. Sec. 501(c). A person with a disability is not obliged to accept any
particular "accommodation, aid, service, opportunity, or benefit". Sec.
States must comply with the ADA and are not immune from its remedies. Sec.
Retaliation, interference, coercion and intimidation in response to charges
made under the ADA are prohibited. Sec. 503.
The Architectural and Transportation Barriers Compliance Board ("ATBCB") is
required to issue additional regulations to assist in implementation of the
ADA. Sec. 504. Various other Federal agencies are to develop and disseminate
technical assistance materials, although failure to secure such assistance is
not an excuse for noncompliance. Sec. 506.
Attorney's fees may be awarded to a prevailing party. Sec. 505.
Federal Wilderness Areas may not exclude wheelchairs, but need not take any
special action under the ADA to accommodate their use. Sec. 507.
Section 508 specifies that a person is not to be considered disabled solely
because that person is a transvestite. Similarly, Sec. 511 declares
homosexuality and bisexuality not to be impairments which would qualify for
protection as disabilities and excludes certain conditions and sexual behavior
disorders from the definition of disability.
Congress itself, at least to an extent consistent with its own internal
procedures, has agreed to comply with the ADA. Sec. 509.
Current illegal drug users are excluded from the definition of "individual
with a disability" under both the ADA (Sec. 510) and (by immediately
applicable amendments (Sec. 512)) the Federal Rehabilitation Act of 1973. Such
people are not excluded for certain purposes, such as receipt of health care
and drug rehabilitation services. Drug testing to ensure that individuals who
are participating or have participated in a drug treatment program are not
currently using illegal drugs is not a violation of either the ADA or the
Rehabilitation Act under these provisions. However, in both laws, testing of
others (including those "erroneously regarded as engaging in such use") is
omitted from the description of testing which would not be considered a
violation. Illegal drug use and testing are covered more fully in Sec. 104
(relating to employment), where drug testing is excluded from the definition
of a "medical examination". Interestingly, in both Sec. 104 and Sec. 510
(relating, presumably, to non-employment provisions of the ADA) -- but not in
Sec. 512 (amending the Rehabilitation Act) -- it is stated that "nothing in
this section shall be construed to encourage, prohibit, restrict, or authorize
the conducting of testing for the illegal use of drugs." The amendment to the
Rehabilitation Act also makes clear that, for purposes of employment under
Secs. 503 and 504 of the Rehabilitation Act, the term "individual with a
disability" does not include an alcoholic whose current use of alcohol either
prevents the person from performing the job in question or, in what might best
be considered a subcategory of the basic criteria, "whose employment, by
reason of such current alcohol abuse, would constitute a direct threat to
property or the safety of others." ADA Sec. 512.
Section 513 encourages the use of alternative dispute resolution under the
- 67, 68, 69 -